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Intellectual property rights, legislated protection, sui generis models and ethical access in the transformation… Young-Ing, Greg 2006

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I N T E L L E C T U A L P R O P E R T Y RIGHTS, L E G I S L A T E D P R O T E C T I O N , SUI GENERIS M O D E L S A N D E T H I C A L A C C E S S IN T H E T R A N S F O R M A T I O N OF INDIGENOUS TRADITIONAL KNOWLEDGE  By GREG YOUNG-ING B A , Carleton University, 1987 M A , Carleton University, 1991 M P u b , Simon Fraser University, 1999  A THESIS S U B M I T T E D IN P A R T I A L F U L F I L L M E N T OF T H E R E Q U I R E M E N T S F O R T H E D E G R E E OF DOCTOR OF PHILOSOPHY  in T H E F A C U L T Y OF G R A D U A T E STUDIES (Educational Studies)  THE UNIVERSITY OF BRITISH C O L U M B I A October, 2006 © Greg Young-Ing, 2006  Transformation o f Traditional Knowledge i i  ABSTRACT  This dissertation arises out o f deep concerns over how Indigenous Intellectual Property and Traditional Knowledge should be ethically accessed and used and reviews existing mechanisms o f protection. It focuses on how Indigenous Intellectual Property and Traditional Knowledge should best be ethically, legislatively and legally treated in the public domain and in other public usage - and what mechanisms are required to protect it particularly regarding Indigenous cultural expressions. The dissertation argues that existing regimes o f protection - such as copyright, patent, trade secrets, trademark, commercial law, and international regulation and convents - do not provide adequate protection for certain forms o f Indigenous Intellectual Property and Traditional Knowledge; and that, therefore, new systems o f protection need to be considered, developed and implemented. The purposes o f this dissertation are: 1) to outline and establish principles in the use of Indigenous Traditional Knowledge for commercial, industrial, and other public purposes, and i n cultural practice, artworks and other tangible and intangible cultural expressions; 2) to establish theoretical frameworks on Indigenous peoples' transformation o f Traditional Knowledge through their cultural practice; and 3) to develop useful models and concepts to regulate the use o f Traditional Knowledge by third parties in the contemporary contexts. In order to achieve these purposes, this dissertation w i l l review the history o f Indigenous and European knowledge systems and the interface between the two systems. It w i l l also examine the development o f Indigenous, national and International regulatory mechanisms and how the current discourse is evolving at these levels.  Transformation o f Traditional Knowledge i i i  T A B L E OF CONTENTS  ABSTRACT  ii  T A B L E OF CONTENTS  iii  ACKNOWLEDGEMENTS  vi  CHAPTER ONE:  INTRODUCTION  Definitions Three Important Points on Traditional Knowledge Journey to a Research Topic Statement o f the Problem Empirical-Like Knowledge as an Indigenous Methodology Experiencing and Interacting Literature Review Chapters Overview CHAPTER TWO: INDIGENOUS KNOWLEDGE SYSTEMS Significant Contributions to Humanity: Devalued and Diminished Customary Laws: Developed Legal Regimes Devalued and Diminished  1 1 4 5 10 13 17 20 26 28 28 31  CHAPTER T H R E E : MANUFACTURING T H E M Y T H O L O G I C A L "OTHER" A n Historical Overview o f the Portrayal o f Indigenous Peoples through Literature The Indigenous Voice  35 38  CHAPTER FOUR: EUROPEAN SYSTEMS: T H E I N T E L L E C T U A L PROPERY RIGHTS SYSTEM Copyright Droit D 'auteur and Droit Moral Originality Ownership Patents and Trademarks  42 42 44 45 46 47  CHAPTER FIVE: CASE STUDIES IN IPR/TK INTERFACE Interaction Between T K and I P R Systems The Public Domain Problem Case Studies Copyright Cases The Cameron Case The Kou-skelowh Case The Mbube Case Analysis Patent Cases The Igloolik Case The Taumatin Case  50 50 51 51 52 52 53 54 55 56 57 57  35  Transformation o f Traditional Knowledge iv  Analysis Trademark Cases The Snumeymux Case The A v e d a Case Analysis Summary  CHAPTER SIX: INDIGENOUS INITIATIVES AND INDIGENOUS/NATIONAL INITIATIVES  58 58 59 60 61 62  64  Indigenous Paradigm Indigenous Experience with Print M e d i a Indigenous Customary Laws and Technology Summary Indigenous/National Initiatives South Africa's Indigenous Knowledge Systems Policy Canada and Australia: Moral and Collective Rights M o r a l Rights and Traditional Knowledge The Carpets Case  64 67 69 70 71 72 75 77 77  Bulan Bulan vs. Anor R&T Textiles PTY Ltd.  78  The W a i 2 6 2 C l a i m The Australia Council/Aboriginal and Torres Strait Islander Arts Board Protocol Guidelines The Use o f Trademarks in N e w Zealand, Australia and Canada The Indigenous Artist's Research Project in Canada The National Gatherings on Indigenous Knowledge Summary  79  CHAPTER SEVEN:  NATIONAL INITIATIVES  National Models o f Sui Generis Legislation/Laws Overview o f National Models Summary  CHAPTER EIGHT:  INTERNATIONAL INITIATIVES  Background The Human Rights Base The International Framework K e y Principles The Working Group on Indigenous Populations ( W G I P Draft) Declaration on the Rights o f Indigenous Peoples The U N Permanent Forum on Indigenous Issues Various Other U N Forums The U N Special Rapporteur Reports W T O and T R I P S Article 27.3 (b) and Article 39.3 o f TRIPs Summary  80 82 89 91 93  95 95 96 127  130 130 132 132 133 134 134 136 138 141 143 143 145  Transformation of Traditional Knowledge v  CHAPTER NINE: DEFINING AND REGULATING T K IN T H E INTERNATIONAL FRAMEWORK The Convention on Biological Diversity The Convention on Biological Diversity and Traditional Knowledge The 80) Working Group The A B S Working Group The B o n n Guidelines Internationally Binding Regime Indigenous Engagement on the Guidelines Principles Indigenous Peoples as Knowledge Holders Customary L a w Prior Informed Consent Recent C B D Developments The W o r l d Intellectual Property Organization W I P O and Traditional Knowledge The W o r l d Intellectual Property Inter-Governmental Committee Recent W I P O I G C Developments Summary  CHAPTER TEN: EMERGING MODELS AND STRATEGIES The Legacy of B i l l Reid Indigenous National Artistic License Principles to Guide the Way Forward The Economic Factor The Case for T K Regulation i n Canada  REFERENCES  146 146 147 148 149 150 151 152 152 153 154 154 155 160 161 164 164 169  171 172 174 175 176 177  186  Transformation of Traditional Knowledge v i  ACKNOWLEDGEMENTS  It is explained in a section of Chapter One on methodology that an important part of this research was conducted through engaging with and learning from people too many to mention. However, for their significant part in informing this dissertation, I would particularly like to acknowledge the following people: John Young, Rosalyn Ing, Doris Young, Jeannette Armstrong, Terri Janke, Paul Kuruk, Aroha Mead, K i m Connolly-Stone. Ellen White, Ernie Benedict, Lavina Lightbalm, Amos Keye, Melelanie Trask, Sharon Venne, M a r i a Campbell, Marie Battiste, Sakej Henderson, T o m Porter, Susan Crean, Debra Harry, W i l l i e Littlechild, Merle Alexander, Jo-ann Archibald, Jean Barman, M i c h a e l Marker, Harold Cardinal, Loretta Todd, Leroy Littlebear, Lee Maracle, Roland Chrisjohn, Gary N e i l , Stephen Augustine, Jack Forbes, Matthias Ahren, M a u i Soloman, Rose Point, Charles Royal, John Mohawk, Fred Fornier, Catherine B e l l , Graham Smith and L i n d a Smith.  Transformation o f Traditional Knowledge v i i  "Traditional Knowledge exists. Intellectual Property is invented."  Transformation o f Traditional Knowledge 1  CHAPTER ONE: INTRODUCTION This introductory chapter w i l l begin with a section on definitions o f terminology used in the Traditional Knowledge ( T K ) discourse followed by an explanation o f how my educational, work and career path eventually led me to an interest in the protection and regulation o f T K . It w i l l also include a Statement o f the Problem as this journey has led me to understand it. This journey has also led me to the Indigenous-based methodology I have employed; while, at the same time, been part o f the methodology. This process is explained in the chapter's section on methodology and a section on my more recent personal experiences and interactions working i n the area o f my topic. The chapter w i l l end with a literature review on the topic.  Definitions This dissertation is laden with terminology that is derived from the emerging Traditional Knowledge discourse. Indeed, i n many cases, the terminology is exclusive to the discourse. M a n y o f these terms w i l l be defined further as they are discussed in the text; however, the following basic definitions are provided below. Access and Benefit-Sharing (ABS): The principle that when Traditional Knowledge is accessed, there should be a benefit-sharing agreement between the user and the Indigenous peoples who originated the Traditional Knowledge. Customary Law: The ancient legal systems developed by Indigenous nations to regulate Indigenous societies. (These laws are also sometimes referred to as "protocols," "cultural protocols" and "indigenous law(s)" i n the literature. The four terms are sometimes used interchangeably in the literature.)  Transformation o f Traditional Knowledge 2  Erroneous Patents: Patents licenses that have been granted on Traditional Knowledge without the consent o f the Indigenous group from which the Traditional Knowledge was originated. Indigenous and Local Communities: A term first developed and used in the Convention on Biological Diversity to encompass Indigenous communities together with the many smaller land-based communities in the world who live similar lifestyles and have common interests, but may not be Indigenous. Indigenous Knowledge(s): The bodies o f knowledge developed by Indigenous peoples including: ancient Traditional Knowledge passed from their ancestors to the present generations; contemporary knowledge developed through the modern Indigenous range o f experience; and a combination and blending o f " o l d " and "new" knowledge. Indigenous Knowledge Systems (IKS): A term used mainly i n the South African context (though becoming more common i n use) to denote that Indigenous knowledge is connected to political, social, spiritual, legal, environmental and other institutions and, therefore, the knowledge can not be viewed as a separate entity, but rather is part o f a interconnected system. th  Intellectual Property: The concept, developed in 16 Century Europe, represents that the creator o f an idea has a form o f legal ownership over the idea and all its derivatives and manifestations. Intellectual Property Rights (IPR): The principle that the creator o f an idea has ownership rights that have been developed into a legal regime(s) i n 16 and 17 Century th  th  Europe to regulate Intellectual Property including copyright, trademarks and patents. Mutually Agreed Terms (MAT): The principle that non-Indigenous peoples, corporations and/or third parties who use Traditional Knowledge should only do so based on  Transformation o f Traditional Knowledge 3  terms agreed to by corporations and/or third parties and the Indigenous group from which the Traditional Knowledge is originated. Prior and Informed Consent (PIC): The principle that Traditional Knowledge cannot be used without first acquiring permission from the Indigenous group from which it is originated and fully informing them o f the intended use. (The more specific term "Free, Prior and Informed Consent" (FPIC) further contends that the Indigenous group must not be coerced i n any manner in the attainment o f their permission.) Sui Generis: A legal term literally meaning "without precedence". In the context o f the Traditional Knowledge discourse, the term is commonly used to describe new laws and legislation developed exclusively to protect Traditional Knowledge. In the discourse the term also carries the heavy and contentious connotation that the Intellectual Property Rights System is inadequate (with regard to Traditional Knowledge and possibly other forms o f knowledge) and, therefore, cannot be a universal system. Traditional Cultural Expressions (TCEs): The term is used to describe art works and craft works that Indigenous peoples have traditionally practiced as part o f their cultures. This includes tangible and intangible expressions such as carving, dances, songs, paintings, stories, clothing,... A t times the term is used interchangeably with the outdated term "folklore". Traditional Knowledge (TK): The term is derived from a longer term "traditional knowledge, innovations and practices" used in early international discussions in the Convention on Biological Diversity i n the early 1990s. The term encompasses a broad range o f Indigenous knowledge including ancient stories, songs and dances; traditional architecture and agricultural; biodiversity-related and medicinal, herbal and plant knowledge; ancient motifs, crests and other artistic designs; various artistic mediums, styles, forms and  Transformation o f Traditional Knowledge 4 techniques; spiritual and religious institutions and their symbols; and various other forms o f Indigenous knowledge. (The World Intellectual Property Organization definition, that has come to be regarded somewhat as a standard definition, is on pages 193-194)  Three Important Points on Traditional Knowledge 1)  Not all Traditional Knowledge is originated from Indigenous peoples. Other forms o f knowledge such as Ancient Chinese Medicine, Caribbean Steel Drum making and music, ancient Belgian weaving and lace -making techniques, and ancient Swiss yodeling have been considered to be forms o f Traditional Knowledge. It is the case, however, that well over ninety-five percent o f Traditional Knowledge is derived from Indigenous Peoples.  2)  The term "Traditional Knowledge" differs from the term "Indigenous Knowledge" i n that it does not include contemporary Indigenous knowledge and knowledge developed from a combination o f traditional and contemporary knowledge. The two terms are, however, sometimes used interchangeably. Certain voices i n the discourse prefer the term "Indigenous Knowledge" because "Traditional Knowledge" can be interpreted as implying that "Indigenous Knowledge" is static does not evolve and adapt (i.e., Henderson, 2002). However, "Traditional Knowledge" is the term used i n most national discourses and virtually all the international forums.  3)  Although Traditional Knowledge can have fundamental characteristics that differ from European-based Intellectual Property, Traditional Knowledge IS Intellectual Property, and is treated as such within the Intellectual Property Rights system.  Transformation o f Traditional Knowledge 5  Journey to a Research Topic This explanation o f my work and publications makes reference to literary writing, magazine articles, edited works and essays, as they related to my educational and professional development and focus o f interest. This summary o f my past work is intended to show how working with and writing about various related issues has ultimately guided my gradual understanding o f T K as the crucial component in the development and evolution o f Indigenous peoples and their ultimate survival. Six o f what I consider my key academic publications w i l l also be referred to, all o f which have contributed to my evolving interest i n the protection o f T K . A s an aspiring writer attending Carleton University in 1988-89, some o f my poetry was published i n an anthology called The Seventh Generation and the first volume o f the journal Gatherings: The En 'owkin Journal of First North American Peoples, both published by Theytus Books. A t that time there was an excitement running through the Aboriginal community about the first journal in North America that would publish a current sampling o f Aboriginal literature each year. A t the same time, I was getting magazine articles published on Aboriginal issues in Perception Magazine and Fuse and had my first academic essay published i n 1988, " A Comparison Between Administration o f First Nations Education i n Canada and Peru," in Volume 15 o f The Canadian Journal of Native Education. While at Carleton I worked for the Assembly o f First Nations on the Committee o f Inquiry into Indian Education and was contracted to write a number o f research papers. After completing a B A and course work for a M A at Carleton University in 1990,1 accepted the job o f Managing Editor o f Theytus Books at the E n ' o w k i n Centre. Young and inexperienced, I could not turn down the challenge o f working with the first Aboriginal owned press in Canada; and I also became Editor o f the annual anthology, Gatherings. From 1993-1997 I  Transformation o f Traditional Knowledge 6  also taught the University o f Victoria extension course C W 206 Publishing Practices and Procedures at E n ' o w k i n . From 1990-2004 I was intimately involved in the Indigenous educational, literary and publishing movement through my work, as well as the various discourses, such as cultural appropriation and repatriation, that were evolving. In 1994-1995 I was part o f the principal writing team for the Royal Commission on Aboriginal Peoples. A t the same time I published articles on Aboriginal literature in Paragraph Magazine and The Quill and Quire, both o f which I intended to be my first input into the ongoing discourse over the cultural appropriation o f Indigenous knowledge. In 1996 I had an essay entitled " A n Overview o f Aboriginal Literature and Publishing in Canada" published i n the Australian Canadian Studies Journal which summarized what I saw as the key issues around cultural appropriation. During that period, after editing several volumes o f Gatherings and publishing and/or editing over three hundred Indigenous authors and about fifty Theytus titles, I had become perplexed over the number o f editorial problems pertaining specifically to the publishing o f material by and/or about Indigenous peoples. Gradually, as more and more problems came up i n the course o f editing, it became apparent that Theytus Books, as an Indigenous publisher, needed to establish editorial guidelines on several specific matters in order to set standards and ensure consistency. Working at Theytus had provided several opportunities to discuss these editorial issues with Indigenous writers, editors, publishers, many who have offered their ideas, opinions and proposed solutions. There had also been several valuable discussions with nonIndigenous fiction and non-fiction writers, academics, journalists and editors concerning editorial problems that arise in writing on Indigenous subject matters. Many o f those people had also indicated that a set o f editorial guidelines would be o f great use to them i n their  Transformation o f Traditional Knowledge 7  work. Based on those discussions, it became apparent that a set o f specific editorial guidelines adhering to Indigenous cultural, political and literary concerns was not only necessary for Theytus, but would also have a potentially wider application. From 1997-2000 I also served both on the Canada Council Aboriginal Peoples Committee on the Arts and as the Indigenous representative on the B C Arts Council. Through these positions I was able to gain a broader perspective on how the issues o f cultural appropriation i n literature were similarly taking place i n other areas o f the Indigenous education, arts and culture. The repatriation discourse going on at the time helped me begin to realize that it was really the reclaiming o f Indigenous knowledge that was at the heart o f the issues we had been fighting for; and that cultural expressions and property were manifestations o f Indigenous knowledge. I had also become deeply concerned that the Indigenous movements' constant opposition to cultural appropriation had a primary focus on literature and that we needed to articulate a broader discourse on all expressions o f Indigenous knowledge in order to begin solidifying our positions. In 1998-1999,1 took a leave from Theytus to complete a Masters o f Publishing degree at Simon Fraser University. I choose to do a second Masters because it was the only post-graduate program in Canada directly related to my area o f work at the time. A s the major research requirement for my M P u b Program, I was able to write the Indigenous editorial guidelines I had wanted to do, i n the form a house style for Theytus Books and a set o f editorial guidelines for Indigenous literature and writing on Indigenous subject matters entitled, "Understanding Peoples on their Terms: A Rationale and Proposal for an Aboriginal Style Guide." A section o f that study entitled "Talking Terminology: What's i n a Word and What's N o t " was published in Prairie Fire Literary Journal in the Fall 2000 Issue. Starting in 2001,1 once again took leave o f my duties at Theytus to begin my P h . D . Program in the  Transformation of Traditional Knowledge 8 Department of Educational Studies at the University of British Columbia. Also in 2001,1 published an essay entitled "Aboriginal Text in Context" in the book (Ad)Dressing Our Words: Aboriginal Perspectives on Aboriginal Literatures.  In 2002,1 was appointed Chair of the Indigenous Peoples Caucus of the Creator's Rights Alliance (CRA), a new organization dedicated to the protection of artists' Intellectual Property. M y role at the organization was to focus on the protection of Indigenous Intellectual Property and TK. Through this role at the C R A I conducted a project called "Old Ways, New Paths: Ethical and Legal Considerations in the Transformation of Traditional Knowledge through Indigenous Cultural Expression" throughout 2004—2005 which included a series of regional symposiums, a research project and a national conference. In 2003 my growing interest in issues of Indigenous Knowledge Systems lead me to write and publish an essay entitled "The Indigenous Tradition/New Technology Interface" in the Journal of Indigenous Studies (re-published in the 2005 book Transference, Tradition, Technology: Native New Media Exploring Visual and Digital Culture). In March 2004 I left  my position as Managing Editor of Theytus Books after fourteen years in order to focus on my PhD program at U B C and my interest in TK. In my years at Theytus I edited and/or published over eighty books and had the honor of working with, editing and publishing many of the authors who initially inspired me to write, and some who inspired my interest in TK, including Jeannette Armstrong, Lee Maracle, Roland Chrisjohn, John Mohawk, Armand Ruffo, Beatrice Culleton, Howard Adams, Maria Campbell and Ellen White. M y years at Theytus also allowed me to work under the direction of my mentor, Jeannette Armstrong, who along with my mother, Rosalyn Ing and my grandfather, the late John Young, have by example given me the ability to do the work I have been able to do so far.  Transformation o f Traditional Knowledge 9  Carrying Theytus through its second and well into its third decade also gave me a strong foundation to pursue my primary area o f interest now - which is the protection and preservation o f Indigenous Knowledge. In hindsight, I can say that what started as an aspiration to write literature gave way to a fortunate opportunity to edit and publish other writers, which then led to an interest i n what all o f this experience has enlightened me to see is the most important issue at the foundation o f all this work. In this research I have incorporated discussions with experts, case study subjects, and a wide international cross-section o f Indigenous peoples and Elders. The primary questions that led me throughout the course o f this research are: •  What was the general state o f the development o f Indigenous nations knowledge systems prior to the arrival o f Europeans in Indigenous territories?  •  H o w were Indigenous knowledge systems traditionally regulated?  •  H o w was the I P R system developed and for what political/social/economic reasons?  •  H o w were Indigenous knowledge systems impacted through the colonization process (and the imposition o f the Intellectual Property Rights system)?  •  H o w has the issue o f protection o f T K played out in Canada, as opposed to other countries, and what are the current national initiatives to deal with the issue?  •  What are the core principles and strategies that can be employed to develop national and international models for the protection and regulation o f T K , particularly with regard to cultural expressions?  •  What are the current international institutions, forums and model legislations, that regulate T K , and how do they impact T K ?  M y dissertation further investigates ethical and internal cultural issues in the transformation o f T K through the expression o f the culture and knowledge by Indigenous peoples. It further investigates ethical and legal issues i n the use and transformation o f T K by non-Indigenous peoples, corporations and third parties. Presently, a great deal o f this type o f T K use occurs under the following problematic set o f circumstances: 1) the T K is found to  Transformation o f Traditional Knowledge 10  have commercial value; 2) non-Indigenous peoples, corporations and third parties produce products derived from the T K , 3) permission for the T K use is not acquired from the original Indigenous rights holders, 4) the original Indigenous rights holders do not acquire any benefits from the T K use; and, i f all o f that is not problematic enough, perhaps worst o f all, 5) non-Indigenous peoples, corporations and third parties take legal ownership over the exclusive rights to the T K , often using the Intellectual Property Rights (IPR) system. The dissertation w i l l make the argument that existing regimes o f protection do not work to protect certain forms o f T K and, therefore, new regimes o f protection need to be developed and implemented. Principles and existing models and for such new regimes o f protection w i l l also be discussed at for their potential to guide the way forward on these issues.  Statement of the Problem From the initial contact periods, the interface between European and Indigenous Nations was characterized by ethnocentric and racist attitudes on the part o f Europeans. Until the early 1980s, dominant Western perspectives tended to view T K as relatively insignificant for the industrialized world and commonly referred to it using the derogatory term "folklore." In the 1980s, ownership o f knowledge and artistic creations traceable to the world's Indigenous societies emerged, seemingly out o f nowhere, as a major social, economic and trade issue (Posey-1996). Throughout the 1990s and into the 2 1 century it has st  become increasingly apparent that T K not only has immense economic value but also salient intrinsic value that contains: cures to diseases and ailments; sustainable management o f resources and ecosystems; means to spiritual, healing and health and lifestyle alternatives; and aesthetics, forms and techniques that produce some o f the world's greatest artworks.  Transformation o f Traditional Knowledge 11  This outside interest has also lead to wide spread misappropriations and otherwise unauthorized and inappropriate use o f T K . A s a result, T K has now given rise to important Indigenous community, national and international issues that are under discussion in many countries and i n The World Trade Organization ( W T O ) , The World Intellectual Property Organization (WIPO), The Convention on Biological Diversity ( C B D ) and various other United Nations ( U N ) forums. Indigenous Peoples have numerous internal Customary Laws associated with the use o f T K that are intimately intertwined and connected with T K to form what are whole and complete, integrated and complex Indigenous knowledge systems that have existed throughout the world for thousands o f years. Indigenous Nations are also considering how Customary L a w s can evolve and be adapted and applied in the present and future. However, throughout the colonization process, and in the post-colonial period, the I P R system has been imposed on Indigenous peoples and their knowledge systems including their Customary Laws. The first European notions o f protection for knowledge and creative ideas can be traced back to the 16 century, in Venice and the 1710 Statute o f Anne i n the U K . th  Developments i n eighteenth century France also led to concepts such as "moral rights" and "author's rights" which influenced the development o f the I P R system. Looking at the history o f I P R with the benefit o f hindsight, The Berne Convention o f 1886 was the first indication of the Western world's intention to make copyright (and the subsequent I P R system) a global regime. In the process o f transporting European institutions into various parts o f the world occupied by Indigenous Peoples, Eurocentric law (including the I P R system) has now been imposed upon Indigenous law (including the T K system) and T K now raises serious  Transformation o f Traditional Knowledge 12  challenges for the current IPR system, which some argue is unable to respond to the concerns o f the T K holders. The Public Domain itself also poses serious problems for T K . Under the I P R system, knowledge and creative ideas that are not "protected" are in the Public Domain (i.e., accessible by the public). Generally, Indigenous peoples have not used the I R P system to protect their knowledge; and so T K is often treated as i f it is in the Public Domain - i n disregard o f Customary L a w . The present reality is that T K is, or will be, in the Public  Domain and that the IPR system overrides Customary Law. U p until the mid-1900s W I P O , the key international body governing Intellectual Property, held the position that the organization had no mandate to deal with issues o f Indigenous peoples. In 1994-1995 this position quickly shifted as the organization was confronted with issues o f problems with the application o f Intellectual Property to Indigenous knowledge. It gradually became apparent i n the mid-1990s that an overwhelming number o f patent licenses and many trademark licenses and copyrighted material consisted o f T K being registered to non-Indigenous individuals and corporations. W I P O ' s Intergovernmental  Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) has taken an international leading role in dealing with the problem since its formation in 2000. The C B D has also taken on a leading role on defining T K rights on an international level. However, the processes are arduous and some member states use the consensus decision processes to stall and block progress. Meanwhile the status quo persists. A recent prominent example is the Inukshuk logo designed by a Mexican-Canadian artist and chosen on A p r i l 24, 2005 as the logo for the 2010 Olympics i n Vancouver. In recent years the idea o f launching a test case on misappropriation o f the Inukshuk has been under consideration among Inuit and other interested Indigenous groups. Violet Ford, former Vice-President o f the Inuit Circumpolar Conference, had just previously explicitly raised the  Transformation o f Traditional Knowledge 13  issue o f misappropriation o f the Inukshuk in an intervention at the W I P O I G C stating, " I f something is not done soon, non-Inuit ownership is going to be taken over our sacred Inukshuk" (Ford-2004). Remarks in the A p r i l 26, 2005 Vancouver Province i n the editorial section from an Inuit person says the logo is "offensive" and goes against Inuit cultural practices. The trademarking o f the 2010 Olympic logo is a shining illustration that IPRs override Customary L a w s and that Indigenous interests in T K are not protected. In the same edition o f The Province Chief E d John was quoted as saying "...they are able to use our symbols without our permission. If we tried to use the Olympic Five Ring for anything, you can bet we would be sued faster than you can say Vancouver 2010." Ford's statement became a reality sooner and at a higher profile level then she probably imagined. This example and these succinct, yet insightful, and undeniably truthful statements, address the problem that w i l l be dealt with in all its layers and complexities i n this dissertation.  Empirical-Like Knowledge as an Indigenous Methodology The vast majority o f Western-based research has been conducted through the scientific process, which has in turn produced most o f Western-based knowledge. V i n e Deloria Jr. has characterized the effect o f the scientific process as follows, "Eventually, we are told, the results o f this research with many other reports, are digested by intellects o f the highest order and the paradigm o f scientific explanation moves steadily forward, reducing the number o f secrets Mother Nature has left." In contrast to Western-based scientific research 1  methodology, there are emerging principles o f Indigenous-based research that draw Indigenous traditional methods o f learning through lived experience including ecological and social interaction. Aspects o f such methodologies can also be viewed in parallel with  Deloria Jr., Vine, (1995). In Red Earth. White Lies: Native Americans and the Myth of Scientific Fact (pp. 42). New York, N Y : Scibner. 1  Transformation o f Traditional Knowledge 14 Western-based theories of: 1) historical methodology, regarding primary sources and oral tradition, and 2) discourse analysis, as expounded by V i v i e n Burr (1995) and Kenneth Gergen(1985). The historical method comprises the techniques and guidelines by which historians use primary sources and other evidence to research and then to write history. The question o f the nature, and indeed the possibility, o f sound historical method is raised in the philosophy of history, as a question o f epistemology (Wikipedia-2006). Aspects o f the historical method and Indigenous epistemology also converge in the use o f Oral Tradition; whereby the oral transmission o f information from person to person is considered a legitimate method o f knowledge acquisition. Whereas oral testimony derived from a person who was present at (or otherwise involved with) a past event can legitimately inform present and future generations o f history; oral transmission o f cultural knowledge flowing from the past legitimately informs Indigenous heritage in preceding generations. In both cases, a form o f exclusive expertise is extended to the person with empirical knowledge o f the event, or the Elder with empirical and trans-generational cultural knowledge. In many cases, the historical method's Oral Tradition and the Indigenous Oral Tradition is often the most reliable method o f knowledge acquisition, and, indeed, sometimes the best or only option. W i t h regard to discourse analysis, Burr and Gergen contended that, "Our ways o f understanding the world are created and maintained by social processes" (Burr 1995: 4: Gergen 1985: 268). Discourse is a form o f social action that plays a part i n producing the social world - including knowledge. Knowledge is created through social interaction in which we construct common truths and compete about what is true or false. Although some 2  aspects o f the methodology I have employed are also supported by discourse analysis, social Phillips, Louise & Jorgensen, Marianne W, O.B. (2002). In Discourse Analysis as Theory and Method (pp. 5). London, England: Sage Publications.  2  Transformation o f Traditional Knowledge 15  constructionist, and empirical and historical research models, most aspects are based fundamentally on Indigenous traditional methodologies that are now emerging as being useful to Indigenous research in contemporary contexts. Indigenous pedagogy paradigms are heavily based on the natural world and apprenticed relationships with Elders and other authoritative experts within Indigenous cultural confines. Within traditional Indigenous cultures, authority and respect are attributed to "Elders" - people who have acquired wisdom through life experiences, education (a process o f gaining skills, knowledge and understanding), and reflection.  3  Perhaps the single most important precept o f the Indigenous worldview is the notion that the world is alive, conscious and flowing with knowledge and energy. In his paper, An  Organic Arising: An Interpretation ofTikanga based upon Maori creation traditions Charles Royal states the following: The natural world is not so much the repository o f wisdom but rather is wisdom itself, flowing with purpose and design. We can say that the natural world is a mind to which all minds find their origin, their teacher and proper model. Indigenous knowledge is the fruit o f this cosmic stream, arising organically when the world itself breathes through and inspires human cultural manifestation... Leading from this view o f the world being alive, conscious and wisdom filled is the obvious conclusion that all that we need to know, all that there is know and all that we should know already exists in the world, daily birthed in the great cycle o f life. That is, human cultural production is a natural organic expression arising from the contours, shapes and colours o f the environments in which we dwell. In order to carry this Indigenous principle into the contemporary context, it must be acknowledged that many Indigenous peoples no longer dwell solely in what was "the w o r l d " to their ancestors (i.e., the natural world). M a n y Indigenous peoples are now located i n a world which consists o f a complex physical and cultural layering o f principles derived from nature and modernity. However, as emerging Indigenous research methodologies express, Archibald, Jo-ann, (1997). In Coyote Learns to Make a Storvbasket (pp. 63).Unpublished Doctoral thesis. University of British Columbia.  3  Transformation o f Traditional Knowledge 16  this does not mean that traditional models are not applicable and adaptable. Therefore, i n contemporary research Indigenous models can be adapted in the following ways: 1) Interaction with the contemporary environment and the subsequent gained experience can be an important and relevant way o f acquiring knowledge; and 2) Authoritative figures who have accumulated a wealth o f experience over time on particular aspects o f the contemporary world can be afforded an Elder-like status for the purposes o f research. This Indigenous model o f learning through experiencing is articulated further i n Decolonizing Methodologies: Research and Indigenous Peoples by Linda Smith (1995) as "intervening" and "connecting." Smith contends that, "Intervening takes action research to mean literally the process o f being proactive and becoming involved as an interested worker for change" (p. 14). Intervening and getting involved in a process occurring i n the world is therefore a legitimate method o f acquiring knowledge through the benefit o f an insider perspective to the process, while also engaging and affecting the process. With regard to connecting, Smith states, "Connectedness positions individuals i n sets o f relationships with other people and with the environment."  4  B y being connected through relationships with people and working directly with and learning from people, another form o f legitimate knowledge is therefore gained. Therefore, by adhering to these Indigenous principles, a significant part o f my research methodology is based on my past fifteen years o f experience working directly with issues o f Indigenous cultural property and T K , and my relationships with others working i n the field. Interacting and engaging with a range o f people, including Elders, technical experts, lawyers, bureaucrats, administrators, community people and artists, also provides a significant part o f  Smith, Linda Tuhiwai, (1999). In Decolonizing Methodologies: Research and Indigenous Peoples (pp. 147). London & New York: Zed Books.  4  Transformation o f Traditional Knowledge 17  the background research to this thesis. The work and processes that have contributed to my research through my direct involvement w i l l be outlined below.  Experiencing and Interacting After accepting the job o f Managing Editor o f Theytus Books I became directly involved in all o f the contentious issues around Indigenous writers, literatures, voice and Indigenous editing and publishing from 1990-2004.1 was also involved (at first peripherally, then ever-increasingly) in the wider Indigenous arts movement through my work, as well as the various discourses that were evolving, such as cultural appropriation and repatriation. A t the same time I continued publishing poetry, including my book The Random Flow of Blood and Flowers i n 1996. In hindsight, poetry and the magazine articles and essays on Aboriginal literature issues were, for me, partly an internal intellectual exercise to come to terms with complex issues surrounding cultural property. The work on the Canada Council Aboriginal Peoples Committee on the Arts and as the Aboriginal representative on the B C Arts Council through the later 1990s gave me opportunities to engage with a broad range o f Indigenous artists and Indigenous arts administrators. Through this committee work I was able to get a privileged insider gaze into institutions developing and implementing Indigenous arts policy and funding programs. A g a i n with the benefit o f hindsight, this experience gave me a sense o f closure for my part in the cultural appropriation discourse and allowed me to move on to the broader issues o f expressions o f Indigenous knowledge. D E F I N I N G M O M E N T A T T H E B E G I N N I N G O F R E S E A R C H : I could never forget, after being on a panel on T K at the ImagineNative M e d i a Arts Festival in Toronto in 2002, when I was approached by my friend and dedicated Indigenous arts advocate, Elaine Bomberry, who said to me: " W e need someone from the Indigenous community to really take up these issues, and that should be you."  Transformation o f Traditional Knowledge 18  The thesis draws on my own experience, the secondary literature, and on a growing and significant body o f research done by the various international forums in which T K issues are under discussion; namely: the C B D , the United Nations Permanent Forum on Indigenous Issues (UNPFII), The Food and Agricultural Organization ( F O A ) , The W o r l d Health Organization ( W H O ) , The United Nations Commission for Trade and Development ( U N C T A D ) , U N E S C O , and particularly the W I P O I G C . In addition to my working directly in the Indigenous arts community on issues o f cultural appropriation and ownership, as outlined above, there are also three recent projects that I have been personally involved with which have added to my experience working directly i n the field. Two o f these projects stem from work in my position o f Chair o f the Indigenous Peoples Caucus (IPC) o f C R A . The C R A was formed in M a y 2002 as a new coalition o f Canadian artists' associations and collectives responsible for managing and advancing creator's rights, particularly i n relation to the protection o f Intellectual Property at a national and international level. The organization also made an immediate commitment to the protection o f T K and the rights o f Indigenous communities and artists. Consequently, the IPC was established to carry out this aspect o f the C R A ' s work. The mandate o f the Caucus is to: (a) gather basic information about T K and copyright issues in relation to the work o f Indigenous creators; (b) to survey current practices and protocols, and (c) to make proposals and recommendations to improve the protection o f Indigenous cultural materials and expressions. 1)  Indigenous Artists Research Project: The C R A IPC began with this initiative by holding two regional symposia in order to discuss the related issues with Indigenous artists in Saskatoon, December 2002, and Winnipeg, M a y 2003. In September 2003, representatives o f the Industry Canada Intellectual Property Directorate (IPD) and the  Transformation o f Traditional Knowledge 19  C R A had discussions about directions for the continuation o f this initiative with possible funding and input from the I P D . In further discussions between Industry Canada and the C R A it was decided that the Indigenous Artists Research Project would be funded and include four more regional symposia in Toronto, Vancouver, and Fredericton in 2004, as well as the national conference with a research component i n Montreal June 3-5, 2004. The C R A I P C has documented the discussions at the regional symposia and June 3-5 Conference. The final report was submitted to IPD on March 18, 2005. This material/information was also augmented with a report on twenty telephone interviews, that was submitted September 24, 2004. The Indigenous Advocacy Support Project: In September 2003 The C R A I P C received a grant from the Rockefeller Foundation to conduct The Indigenous Advocacy Support Project (IASP). The project involved attending international forums where T K issues were being discussed. I had already been regularly attending the W I P O I G C since 2002, but in 2004-2005 the I A S P also allowed me to attend C B D and U N P F I I meetings. A t these meetings I have had an opportunity to lobby and share information with Indigenous advocates from around the world. I have also been able to speak directly with staff members o f the various forums and be party to statements made by member states and N G O s on the floor o f the meetings. In this capacity, I have also been party to regular ongoing discussions between the Canadian Government Delegation(s) and the Indigenous delegation(s) from Canada. A n important part o f my research was conducted through my work and by participating in these ongoing processes pertaining to my research topic. Through the international lobbying work I have been involved with in the past four years, I have been guided by L i n d a Smith's assertion, "Intervention is directed then at changing institutions which  Transformation o f Traditional Knowledge 20  deal with indigenous peoples and not changing indigenous peoples to fit the structures." 3)  5  The National Gatherings on Indigenous Knowledge: The National Gatherings on Indigenous Knowledge ( N G I K ) is the last o f the Department o f Canadian Heritage National ( P C H ) Gatherings on important Aboriginal issues, adding to the legacy o f The National Gathering on Aboriginal Artistic Expressions in 2002 and The National Gathering on Aboriginal Cultures and Tourism in 2003. From 2004-2005 I have been on the N G I K Advisory Committee. Our Committee has participated in the planning o f these Gatherings in a series o f monthly meetings with P C H staff beginning in August 2004. The N G I K gatherings took place in May-June 2005 and consisted o f eight gatherings held in Rankin Inlet, Penticton, Wanaskawin, Edmonton, Yellowknife, Montreal, Eskasoni and Six Nations, as well as one On-Line gathering. A s a Committee member I attended some o f the gatherings and had access to the information gathered.  M y involvement in all o f this relatively recent work has played a significant part in both informing and inspiring my research.  Literature Review In 1982 a Columbian anthropologist, Elizabeth Reichell, and a British anthropologist, Darrell Posey, were sitting together i n Bogota at an Earth Summit Conference on Planning for the Environment. A t the time Reichell was primarily interested i n studying the Indigenous peoples from her country and Posey was preoccupied with the study o f insects and their relationship to the environment and people. After watching a presentation by an Indigenous  5  Ibid., 14  Transformation o f Traditional Knowledge 21  leader Posey turned to Reichell and said: "That presentation has made me realize that Intellectual Property is not protecting Indigenous peoples knowledge, and this is a huge problem." Years later in London, Posey convinced his research assistant, Graham Dutfield, to begin working together with him on the book Beyond Intellectual Property: Toward  Traditional Resource Rights for Indigenous Peoples and Local Communities which was published in 1996 (Reichell-2006). D E F I N I N G M O M E N T A T T H E E N D O F R E S E A R C H : In A p r i l 2006 I sat with Elizabeth Reichell at The World Intellectual Property Organization Headquarters in Geneva at the ninth meeting o f The Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore. She recalled Posey's 1982 observation in Bogota, expressed her regret over his passing, and said: "I can't believe we have come from that to this." The absence o f literature up until the last ten years illustrates how relatively new the discourse on T K is. A t the same time it must also be said that the ever-increasing amount o f literature i n the past ten year period, coming out o f various corners o f the world, indicates the emerging importance o f the T K issues. Most researchers and others working on T K issues credit the British anthropologist, Darrell A . Posey, for bringing it to the mainstream in the early 1990s. Posey and Graham Dutfield published Beyond Intellectual Property: Toward  Traditional Resource Rights for Indigenous Peoples and Local Communities in 1996. A s with many great "first books" Beyond Intellectual Property provided a basic background and overview o f most relevant issues, and remains a relevant contribution as such to date. Against the work that would follow, Posey's opening contribution is a necessary conservative account that set the stage for some o f the more innovative contributions to follow. Posey did not have the knowledge o f what new models would be developed and proposed between 1996 and the present; in particular the proposals for non-IRP solutions. Posey's worth is in the comprehensive initial analysis and suggestions o f trying to adapt the I P R system.  Transformation o f Traditional Knowledge 22  Terri Janke and Michael Frankel's Our Culture Our Future: Report on Australian Indigenous Cultural and Intellectual Property Rights (1998) is a thorough account o f how the issues played out in the Australian context. The Australian example became the most active and progressive national experience involving an organized Indigenous lobby, a public awareness campaign and a series o f test cases leading to the development o f a body o f Common L a w . Therefore, Janke and Frankel's contribution is an extremely useful document that covers the initial research and background o f events that led to what became and still is an Indigenous "political movement" within the country. It illustrates that the I P R system can be stretched beyond its usual limitations to better serve the needs o f T K stakeholders. It also could be interpreted as a model for other national experiences, and serves as an early complement to Posey's international perspective. Janke's 2003 contribution Minding Culture: Case Studies on Intellectual Property and Traditional Cultural Expressions also complements Our Culture Our Future by providing a summary o f case studies and an update o f the various events that transpired i n Australia since 1998. With Minding Culture Janke is not working in collaboration with a non-Indigenous author on a Government report (as she was with Our Culture Our Future) and she is able to provide a more critical analysis from an Indigenous perspective. Marie Battiste and James Youngblood Henderson's Protecting Indigenous Knowledge and Heritage: A Global Challenge (2001) is most valuable in that it provides an Indigenous, Canadian and international perspective. A s with Our Culture Our Future Battiste and Henderson give a historical background on how T K issues developed i n Canada through the cultural appropriation discourse i n the 1980s and the repatriation movement on the 1990s. It also analyses the various relevant frameworks within Canadian law and policy that must be confronted, and gives some valuable updates on events within forums in the international  Transformation o f Traditional Knowledge 23  regime that Posey introduced five years earlier. Henderson himself has challenged Posey's inability to look beyond IPRs (despite the name o f his book) and Protecting Indigenous Knowledge and Heritage represents a comprehensive analysis and discussion o f Sui Generis (non-IPR) solutions and a revitalization o f Customary L a w (In Aboriginal Tenure in the Canadian Constitution 2000, Chapter 24 entitled "Aboriginal Knowledge and Heritage Enfold Sui Generis Aboriginal L a w and Tenure" Henderson elaborates this in greater detail). Despite being published by an academic press (Harvard University Press) Michael Brown's Who Owns Native Culture (2003) is written in a more popular literature style on the issues. B r o w n often makes reference to specific examples from his personal experience as an anthropologist. M a n y other examples o f misappropriated aspects o f Indigenous culture i n the U . S . and around the world are also brought into the discussion. Brown's contribution is useful in reviewing the history o f the issue in the U . S . and also in depth reviewing o f T K discussions i n international forums (which he is well aware o f and very optimistic about). However, he does not give much relevance to Customary L a w and Sui Generis approaches in his analysis. Posey, Janke and Frankel Janke, Battiste and Henderson, and B r o w n are the key works written on the topic in the past ten years that have made major contributions to the ongoing academic discourse. However, there have been some other important contributions by Stephen Brush and Doreen Stabinsky, Catherine Hoppers, Donald L . Fixico, Ladislaus Semali and Joe L . Kincheloe, George J. Sefa and B u d L . H a l l and Dorothy Goldin Rosenberg, Hirini M o k o Mead, Sophia Twqarog and Promila Kapoor, Barry Barclay and Ikechi Mgbeoji, which are contained in the bibliography. These contributions have had a more marginal impact on the discourse for a variety o f reasons: such as; they do not focus  Transformation o f Traditional Knowledge 24  directly on the topic, focus on a specific aspect o f the topic, regional focus, or the work did not reach a wide audience due to limited and/or difficult access. Brush and Stabinsky's Valuing Local Knowledge: Indigenous People and Intellectual Property Rights (1996) is a collection o f essays focusing on Indigenous plant and herbal knowledge. Sefa, H a l l and Rosenberg's Indigenous Knowledges in Global Contexts: Multiple Readings of Our World (2000) is a collection o f essays focusing on genetic resources, health, pedagogy and African issues. Catherine Hoppers' Indigenous Knowledge and the Integration of Knowledge Systems: Towards a Philosophy ofArticulation (2002) is a collection o f essays, only available in Southern Africa, commissioned by the South African Government which set out the groundwork for the development o f the 2006 Indigenous Knowledge Systems Policy. Fixico's The American Indian Mind in a Linear World: American Indian Studies and Traditional Knowledge (2003) is a philosophical approach to Traditional Knowledge focusing on aspects o f how the cognitive process o f Native Americans is impacted in the educational system and academia. Mead's approach i n Tikanga Maori: Living by Maori Values (2004) is similar to Fixico's in that is focuses on the M a o r i cognitive and epistemological process, although Mead also covers aspects o f M a o r i ceremony and ritual. Twqarog and Kapoor's Protecting and Promoting Traditional Knowledge: Systems, National Experiences and International Dimensions (2004) is a collection o f essays published by United Nations Conference on Trade and Development that was predominantly published for and distributed within the United Nations ( U N ) system. V o n L e w i n s k i ' s Indigenous Heritage and Intellectual Property: Genetic Resources, Traditional Knowledge and Folklore, published Kluwer L a w International in 2004, is a very cost prohibitive collection o f essays written in high legalese and taking a strict legal approach. Barclay's  Transformation o f Traditional Knowledge 25  Mana Tuturu: Maori Treasures & Intellectual Property Rights (2005) focuses strictly on issues o f Intellectual Property and Traditional Knowledge i n film making. Mgbeoj's Global Biopiracy: Patents, Plants and Indigenous Knowledge (2006) was just recently published and focuses on the issue o f patenting o f Indigenous plant knowledge. There have been many useful essays published on the topic including: Catherine B e l l and Rob Paterson's "Aboriginal Rights to Cultural Property i n Canada", published i n the International Journal of Cultural Property (1999), Daniel Gervais' "Traditional Knowledge: A Challenge to the International Intellectual Property System" (2003-commissioned by the C R A for posting on www.cra-adc.ca), Megan Carpenter's "Intellectual Property L a w and Indigenous Peoples: Adapting Copyright to the Needs o f the Global Community" published in the Yale Human Rights & Development Law Journal (2004) and Gerald McMaster and Clifford E . Trafze's "Our Universes: Traditional Knowledge Shapes Our W o r l d " published by the Smithsonian Institution i n association with National Geographic in Native Universe:  Voices of Native America (2004) . There are also some unpublished essays on Traditional Knowledge (some o f which are referenced i n this dissertation), numerous briefing and position papers, and research documents prepared by organizations, institutions and U N agencies. In particular an extensive body research documents and publications have been produced by W I P O . However, compared to most dissertation topics the body o f literature is relatively recent and small. I have reviewed the literature and incorporated it into my research; however, I have also relied heavily on acquiring knowledge directly from experts and participating directly i n processes related to the topic - as I have outlined i n my methodology.  Transformation o f Traditional Knowledge 26  Chapters Overview Chapter T w o begins by first outlining the development and the nature o f Indigenous knowledge systems in and connected regulatory regimes, concluding generally that Indigenous Nations developed complex and advanced knowledge systems that have made major contributions to humanity. Chapter Three considers how these knowledge systems have been diminished by European ethnocentric mythologies that have been supported and perpetuated through various mediums. Chapter Four o f the dissertation examines the development and the nature o f the I P R system. European concepts such as moral rights, authors' rights copyright and convents such as the Statute o f Anne and the Berne Convention are also considered i n this section. Chapter Five looks at case studies o f interaction between Indigenous and European systems. The case studies are analyzed i n terms o f the insights they provide about the functionality o f the I P R system and its ability to incorporate T K . It highlights concerns that existing regimes o f protection are not able to protect certain forms o f T K . The case studies show that an historical inequitable relationship between European and Indigenous systems persists resulting i n the severe exploitation o f Indigenous systems. Chapters S i x examines Indigenous and national initiatives considers Indigenous principles together with developing C o m m o n L a w in Canada and Australia as to their relevance to the establishment o f new regulation. This includes an outline o f South Africa's recently established Indigenous Knowledge Systems Policy issues and summaries o f judgments i n Canada and Australia, as well as the development o f Indigenous trademarks in N e w Zealand and Australia and some initiatives undertaken on the part o f the Canadian government. Chapter Seven focuses on national frameworks in the African U n i o n , B r a z i l , China, Costa Rica, India, Peru, Philippines, Portugal, Peru, The United States o f America and  Transformation o f Traditional Knowledge 27  Thailand. This chapter on National Initiatives concludes that several useful models o f T K protection exist. Chapters Eight and Nine focus on the International Framework around T K , along with a brief outline o f related discourses taking place in various international forums including W I P O , C B D , U N E S C O and various other United Nations forums, and W T O . This research i n these chapters illustrates that T K has become a subject o f immense importance around the world and that a great deal o f ongoing work is required in the area. The concluding Chapter Ten provides an overview o f ways to move forward on T K issues i n Indigenous, national and global contexts. A n analysis o f the practices and works o f one particular Indigenous artist, B i l l Reid, is analyzed to illustrate how concepts from Indigenous and European Laws could be fused in new models regulating the use and transformation o f T K though contemporary practice. The conclusions focus on how Indigenous Intellectual Property and T K should best be ethically treated and regulated i n its use by Indigenous peoples, non-Indigenous peoples and in the public domain. The salient discourse over the establishment o f Sui Generis protection vs. adapting the I P R system is also discussed and analyzed. The dissertation concludes that new laws and systems o f protection for T K need to be developed and implemented at national and international levels, and that this work should progress based on analysis o f the various existing models, legislation and laws.  Transformation o f Traditional Knowledge 28  CHAPTER TWO: INDIGENOUS KNOWLEDGE SYSTEMS Prior to contact with Europeans between 300-600 years ago, Indigenous knowledge systems had developed and flourished over thousands o f years in various parts o f the world. These knowledges are rich and varied, ranging from soil and plant taxonomy, cultural and genetic information, animal husbandry, medicine and pharmacology, ecology, zoology, music, arts, architecture, social welfare, governance, conflict management, and many others.  1  This chapter w i l l briefly outline a very small sampling o f the manifestations o f Indigenous knowledge systems that existed prior to European contact and colonization, most o f which continue to exist and evolve.  Significant Contributions to Humanity: Devalued and Diminished In the northern part o f the continent o f South America, Indigenous nations had charted the constellations, developed astrological charts and constructed elaborate pyramids that parallel the pyramids in Egypt. In the mountains near the mid-west coast o f the Continent were complex city structures containing shaped stone buildings, stairs, walkways and irrigation systems that still stand today. The ruins show precision-crafted buildings with neat regular lines, beveled edges, and mortarless seams that characterize the best o f Inca architecture. In the interior o f North America, Indigenous nations constructed gigantic 2  mounds, some in the shape o f animal and human figures that can only be identified from an aerial view. Entombed bodies and metal tools have been found inside these mounds  Hoppers, Catherine, (2002). In Indigenous Knowledge and the Integration of Knowledge Systems: Towards a Philosophy of Articulation (pp. 11). Claremont, South Africa: New Africa Books. Weatherford, Jack, (1988). In Indian Givers: How Native Americans Transformed the World (pp. 59). New York, New York: Crown Publishers. 1  2  Transformation o f Traditional Knowledge 29  indicating, "a complex and advanced civilization at work." A l o n g the Northwest coast o f the 3  Continent intricate wood longhouses were constructed comprising village structures that continue to intrigue architects. The three hundred or so tribal groups who lived i n North America when Christopher Columbus arrived built their homes and arranged their settlements according to similar patterns and principles passed from generation to generation.  4  Far beyond architecture Indigenous design in North America had produced products including a variety o f canoe designs, the kayak, show shoes, sunglasses and a multitude o f various farming and hunting implements. Gardening using hydroponics and advanced farming techniques were developed and practiced in various continents by Indigenous peoples producing a range o f crops including corn, squash, beans, tomatoes, wheat, potatoes and varieties o f fruits. Throughout the Amazon basin Indigenous farmers had overcome problems with termites and other insects by utilizing extracts from trees that act as natural repellent - which some Western scientists now struggle to understand and reproduce. Throughout North America and South America, Indigenous farmers had a profound understanding o f genetics enabling them to experiment with new strains o f potatoes. In the Andean region Indigenous farmers knew that by taking pollen from one variety o f corn and fertilizing the silk o f another variety, they could create a corn with combined characteristics o f the two parent crops.  5  Major advances in the realm o f health and herbal medicines had been developed throughout the continents o f the Indigenous world. Shamans and traditional healers practiced  Francis, Daniel (1992). In The Imaginary Indian: The Image of the Indian in Canadian Culture (pp.193). Vancouver, British Columbia: Arsenal Pulp Press. Nabokov, Peter, & Easton, Robert, O.B. (1989). In Native American Architecture (pp. 12). Oxford, New York: Oxford University Press. Weatherford, Jack, (1988). In Indian Givers: How Native Americans Transformed the World (pp.85). New York, New York: Crown Publishers 3  4  5  Transformation o f Traditional Knowledge 30  spiritual, herbal, and psychological techniques, including the placebo effect. Indigenous herbal specialists around the world gathered plants and studied and developed natural medicines that continue to surpass by far advances in herbology by non-Indigenous peoples. Indigenous knowledge systems have also made many significant contributions to the arts and humanities o f the world. The technique o f acid etching o f designs o f Hohokam peoples in what is now southwestern Arizona (dating back to 500 b.c.) predates the technique in Europe by three hundred years. Stories o f ancient times before human beings, stories o f 6  the Creation o f Indigenous peoples and other stories o f spiritual, mythological and legendary figures are rooted i n the Oral Tradition o f Indigenous nations and have been passed down through generations and continue to fascinate many o f the peoples o f the world. Elaborate Indigenous artistic techniques and designs i n sculpture, painting, music, drama, dance, continue to thrive in traditional and evolved forms, and have intrigued art historians and the art world for centuries. In the area o f governance, complex political systems exist among Indigenous nations and include chieftainships, monarchies, and evidence o f universal rights and democracy prior to any such concepts in Europe. The Haudenausaunee People o f the Longhouse practice a democratic form o f government and formed the League o f the Six Nations Confederacy that would later influence the development o f American and European democracy. Oral history among the People o f the Longhouse place the origin o f the league at about 900 b.c. Other 7  united nations structures along the northwest coast, eastern seaboard and southern and northeast plains o f North America developed between 2500 and 1500 years ago and far predate any such structures in Europe.  Francis, Lee, (1996). In Native Time: A Historical Time Line of Native America (pp. 14). New York, New York: St, Martin's Griffin. Ibid.  6  7  Transformation of Traditional Knowledge 31 Indigenous knowledge systems represent the accumulated experience, wisdom and know-how unique to nations, societies, and or communities of people, living in specific environments of America, Africa, Asia and Oceania. It represents the accumulated knowledge of seventy per cent of the earth's people—some ten thousand distinct peoples and cultures. In the past, Eurocentric knowledge has condescendingly associated Indigenous knowledge with the primitive, the wild, and the natural. This is the prevailing negative 8  Eurocentric perception of T K that forms the basis for the status quo. Despite the advances made by knowledge systems throughout the Indigenous world, the Western world's general response throughout the colonial and most of the post-colonial periods was to dismiss the value of T K . Since only European people could progress, all Indigenous knowledge was viewed as static and historical.  9  Indigenous knowledge is not only "technical" or empirical in nature, but also its recipients integrative insights, wisdom, ideas, perceptions and innovative capabilities that pertain to ecological, biological, geographical, and other physical phenomena. It has the capacity for total systems understanding and management. Yet these high capacity, time10  tested Indigenous systems' have been devalued and diminished by having Eurocentric perceptions and institutions imposed upon them. In the process, many of the systems have been de-based through misrepresentation, misappropriation, unauthorized use and the separating of the content from its accompanying regulatory regime.  Customary Laws: Developed Legal Regimes Devalued and Diminished Indigenous Peoples have numerous internal Customary Laws associated with the use of TK. These Customary Laws have also been called "cultural protocols" and are part of the  8  9  10  Henderson, Sakej, (2004). Traditional Indigenous Knowledge (pp. 1). Unpublished. Henderson, Sakej, (2004). Traditional Indigenous Knowledge (pp.6). Unpublished Henderson, Sakej, (2004). Traditional Indigenous Knowledge (pp. 2). Unpublished.  Transformation o f Traditional Knowledge 32  laws that Indigenous Nations have been governed by for millennia and are primarily contained in the Oral Tradition. Although, i n lieu o f the increased outside interest i n T K and problems with interaction between T K and I P R systems, there is a current movement among Indigenous Nations to document their protocols i n written and/or digital format. Customary Laws around the use o f T K vary greatly between Indigenous Nations, but include such regulations as: •  Certain plant harvesting, songs, dances, stories and dramatic performances can only be performed/recited and are owned by certain individuals, families or clan members in certain settings and/or certain seasons and/or for certain Indigenous internal cultural reasons;  •  Crests, motifs, designs and symbols, and herbal and medicinal techniques are owned by certain individuals, families or clan members;  •  Artistic aspects o f T K , such as songs, dances, stories dramatic performances, and herbal and medicinal techniques, can only be shared in certain settings or spiritual ceremonies with individuals who have earned, inherited and/or gone through a cultural and/or educational process;  •  A r t forms and techniques, and herbal and medicinal techniques, can not be practiced, and/or certain motifs can not be used, until the emerging trainee has apprenticed under a master o f the technique;  •  Certain ceremonial art and herbal and medicinal techniques can only be shared for specific internal Indigenous cultural and/or spiritual reasons and within specific Indigenous cultural contexts.  These are but a few general examples o f Customary Laws that Indigenous Nations around the world have developed over thousands years to regulate the use o f T K . Indigenous protocols are intimately intertwined and connected with T K and form what can be viewed as whole and complete integrated complex Indigenous Knowledge systems throughout the world. For example, speaking about clan ownership in Nlakapamux Customary L a w , Shirley Sterling states: "This concept o f ownership by clans, nations and family groups and individuals o f stories and other knowledge must be respected. The protocols for the use o f collective  Transformation of Traditional Knowledge 33 knowledge from each cultural area and each First Nation would have to be identified and followed."  11  Indigenous Customary Law, like other sources of law, is dynamic by its very nature. Like its subject matter - culture, practices and traditions - it is not frozen in time, it has evolved with the social development of Indigenous peoples. Indigenous Customary Law also has an inextricable communal nature. The social structures that recreate, exercise and transmit this law through generations, and the protocols that govern these processes, are deeply rooted in the traditional territories of Indigenous peoples, and, understandably are inalienable from the land and environment itself. Indigenous Customary Law is inseparable from Indigenous knowledge. In some Indigenous Nations, the abstract subtlety of Indigenous customary law is indivisible from cultural expressions such as stories, designs and songs. That is, a story may have an underlying principle of environmental law or natural resource planning. A song may explain the custodial relationship that a certain community has with 13  a particular animal species. A design may be a symbol that expresses sovereignty over a territory as well as the social hierarchy of a nation's clan system. A watchman's pole may be considered an assertion of Aboriginal title, tell a story of a historical figure and have a sacred significance.  14  Neither the common law nor international treaties place Indigenous customary law on equal footing with other sources of law. As a result, the T K is particularly vulnerable to continued destruction without substantive legal protection. Indigenous jurisprudence and law  Sterling, Shirley, (1997). In The Grandmother Stories: Oral Tradition and the Transmission of Culture (pp. 39). Unpublished Doctoral thesis. University of British Columbia Press. Alexander, Merle, (2003). In Customary Laws: Appling Sharing within Communities to International Instruments (pp.9). Unpublished. See Borrows, supra 1, at 17-20 for an interpretation of an Anishinabek resource law regarding Nanabush v. Deer, Wolf et al. Alexander, Merle, (2003). In Customary Laws: Appling Sharing within Communities to International Instruments (pp.11). Unpublished. 11  12  13  14  Transformation of Traditional Knowledge 34  should protect Indigenous knowledge. In relation to Eurocentric law, Indigenous jurisprudence o f each heritage should be seen as an issue o f conflict o f laws and comparative jurisprudence. With regard to its authority over Indigenous knowledge, Indigenous law and protocols should prevail over Eurocentric patent, trademark or copyrights l a w . However, 15  due to a series o f historical realities that w i l l be considered i n the following chapters, the status quo is that Indigenous knowledge has become subjugated under European legal regimes.  15  Henderson, Sakej, (2004). In Indigenous Traditional Knowledge (pp.9). Unpublished.  Transformation o f Traditional Knowledge 35  CHAPTER THREE: MANUFACTURING THE MYTHOLOGICAL "OTHER" This chapter w i l l include a summary and analysis o f early texts on Indigenous peoples by explorers and missionaries, anthropological and archeological texts, and popular literature and film, with regard to their contribution to the construct o f a status quo image o f Indigenous peoples as unadvanced and i n need o f development through access to European knowledge. It w i l l also focus on how T K was discounted and/or devalued i n the process.  An Historical Overview of the Portrayal of Indigenous Peoples through Literature Early writings about Indigenous peoples in North America were authored by explorers like Champlain and Carrier i n the 1500s and 1600s, missionaries like John M c D o u g a l l i n the 1800s, anthropologists like Diamond Jenness and Franz Boas around the turn o f the century, and literary writers such as James Fenimore Cooper and Stephen Leacock in the early to m i d 1900s. The vast majority o f these writers made reference to Indigenous peoples as an inferior vanishing race i n a manner that is degrading and offensive to many Indigenous peoples, conveying little information about their cultural reality. In Indians of Canada, for example, which was for decades considered to be the authoritative anthropological text, originally published i n 1938, Diamond Jenness begins in the first paragraph writing, When Samuel Champlain i n 1603 sailed up the St. Lawrence River and agreed to support the Algonkian Indians at Taboussac against the aggression o f the Iroquois, he could not foresee that the petty strife between these two apparently insignificant hordes o f savages would one day decide the fate o f N e w France. M u c h o f the literature written by explorers, missionaries and anthropologists provided little insight into the cultural realities o f Indigenous Peoples, yet it influenced the intellectual  Transformation o f Traditional Knowledge 36  foundations for European-based society's perception o f Indigenous peoples as basically primitive and under-developed. It has also been argued further, by Indigenous intellectuals such as Ward Churchill (1992) and John Mohawk (1988), that the common perception was also characterized, consciously or subconsciously, by Darwinian concepts that can be taken to suggest Indigenous peoples are located somewhere on an evolutionary scale between primates and homo-sapiens. Later, imposters such as Sylvester L o n g (a.k.a. Long Lance 1922-1929) and Archie Belaney (a.k.a. Grey O w l 1931-1937) came to have considerable notoriety lecturing, writing and publishing while masquerading as Indigenous. Generally, these writers displayed a less condescending and more positive attitude toward Indigenous peoples; although their work tended to reinforce the stereotypical image o f Indigenous peoples as glorified remnants o f the past, a la Rousseau's (1928) concept o f "the Noble Savage." A s noted by Robert Berkhofer in his book The Whiteman's Indian, "Although each succeeding generation (of writers) presumed its imagery based more upon the Native Americans o f observation and report, the Indian o f imagination and ideology continued to be derived as much from polemical and creative needs o f Whites as from what they heard and read o f actual Native Americans or even at times experienced." A review o f the literature would reveal that high profile 1  Canadian writers, such as Farley Mowat and Stephen Leacock, conveyed many o f the perceptions created by explorers and missionaries. Even the charlatan tradition set by Grey O w l and L o n g Lance is evident in the work o f contemporary writers such as Jamake Highwater, L y n n Andrews and A d o l f Hungry Wolf. A more recent development in the late 1980s and throughout the 1990s has been a wave o f writing by non-Indigenous academics such as Frank Cassidy, Boyce Richardson, Berkofer, Robert, Jr. (1979). In The Whiteman's Indian: Images of the American Indian from Columbus to the Present (pp. 27). New York, New York: Vintage Books. 1  Transformation o f Traditional Knowledge 37  Thomas Berger, Michael Ashe, Sally Weaver, Menno Bolt and Anthony Long. M a n y o f these authors are involved with higher-level academic and government institutions and have established themselves as authoritative "Native Studies experts." The majority o f these writers are knowledgeable and supportive o f Indigenous peoples' political and cultural aspirations, and they must also be credited with some o f the increased public awareness in recent years. However, while much o f this body o f work has observational and analytical value, it cannot express Indigenous knowledge, nor can it express Indigenous peoples' unique internal perspective on contemporary political and cultural issues. Although this body o f work is predominately well-intentioned, some Indigenous writers such as Lee Maracle (1996) and Leroy Littlebear (1992) have stated that it tends to reduce the emotionally, historically and culturally charged issues to dry information laden with legalized and/or academic jargon. A s stated by the late Howard Adams, "Academia is slow to re-examine what has been accepted for centuries... These myths have been so deeply ingrained i n the peoples' psyche that even Aboriginals w i l l have to go to great lengths to rid themselves o f colonial ideologies."  2  A s further observed by Churchill, "the current goal o f literature concerning Indians is to create them, i f not out o f the whole cloth, then from only the bare minimum o f fact needed to give the resulting fiction a ring o f truth."  3  Here Churchill expresses a view commonly  held by many Indigenous peoples — as well as many mainstream historians and academics — that a review o f contemporary literature reveals an improvement in the portrayal o f Indigenous peoples, but also a persistence o f subtle inappropriate stereotypes and faulty academic paradigms. It has been argued by Indigenous intellectuals, that the common  Adams, Howard (1995). In A Tortured People: The Politics of Colonization (p. 33). Penticton, British Columbia: Theytus Books Ltd. Churchill, Ward, (1992). In Fantasies of the Master Race: Literature. Cinema and the Colonization of American Indians (pp. 38). Monroe, Maine: Common Courage Press.  2  3  Transformation o f Traditional Knowledge 38  perception was also characterized, consciously or subconsciously, by Darwinian concepts and that these faulty images have impacted the adverse colonial and post-colonial legislative treatment o f Indigenous peoples.  T h e Indigenous Voice The creation and/or expression o f culture by Indigenous peoples through any traditional medium or any contemporary medium or any combination thereof, constitutes an expression o f what can be referred to as the "Indigenous V o i c e . " Drawing from a blend o f traditional and contemporary sources such as Oral History, traditional storytelling technique, inanimate, animal and spirit characters from legends, and contemporary existence, literary technique literature, or other mediums such as film or multi-media, the contemporary Indigenous V o i c e is a unique mode o f cultural expression. Throughout the past three decades Indigenous authors and artists have developed and expressed the Indigenous Voice by creating a body o f work that now stands out as a distinct culturally-based contemporary body o f work constituting its own literary canon and artistic standards. This important body o f work is the most culturally authentic expression o f Indigenous knowledge; although it has often been overshadowed by non-Indigenous writers who continue to develop a separate body o f literature focusing on Indigenous peoples as subjects. A t the same time it must be acknowledged that the significance o f Indigenous literature is beginning to be realized by the Canadian literary and publishing establishments, after years o f marginalization and lack o f understanding and access. The lack o f Indigenous knowledge portrayed through literature is similarly reflected in film, television, popular music, advertising, educational systems and various other mediums. The paramount purpose o f literature focusing on a specific cultural group should be to present the particular culture in a realistic and insightful manner, with the highest possible  Transformation o f Traditional Knowledge 39  degree o f verisimilitude. A s Franz Boas (1955-1960) argued in his progressive anthropological concept o f "ethnocentrism" this purpose can ultimately only be achieved through a perspective o f a culture from the inside. Jacques Derrida calls the "ethnocentrism o f the European science o f writing in the late seventeenth and early eighteen centuries a symptom o f the general crisis o f European consciousness," and states further that "recognition through assimilation o f the Other can be more interestingly traced... i n the imperialist constitution o f the colonial subject." Indeed, the vast majority o f the literature on 4  Indigenous peoples tends to view them as "the Other" and thus fails to achieve an internal cultural perspective. This failure has been a long-standing concern o f Indigenous peoples and other marginalized groups, and was identified by progressive anthropologists, like Boas, in the m i d 20th century and by members o f the Canadian literary establishment, such as A t w o o d , who wrote in 1972, "The Indians and Eskimos have rarely been considered in and for themselves: they are usually made into projections o f something in the white Canadian psyche." Although increased cultural awareness and the concept o f ethnocentrism 5  throughout the 1980s and 1990s has led to a marked improvement in the contemporary literature on Indigenous peoples, there is still a significant body o f literature being produced that contains some o f the old stereotypes and perceptions, and lacks respect for Indigenous perspectives. This misrepresentation in many ways parallels the editorial advances that have been made in the late 20th century in writing about African Americans and women, and the development o f concepts such as "Black History" and "Herstory." One predominant assertion made by Indigenous writers, editors and publishers is that the experience o f being an  Spivak, Gayatri Chakravorty (1994). In Can the Subaltern Speak?. Colonial Discourse and Post-Colonial Theory: A Reader (pp. 89). New York, New York: Columbia University Press. Atwood, Margaret (1972). In Survival: A Thematic Guide to Canadian Literature (pp. 91). Toronto, Ontario: McClelland & Stewart Inc.  4  5  Transformation o f Traditional Knowledge 40  Indigenous person is profoundly different from that o f other people in North America. M a n y Indigenous authors have cited cultural appropriation and misrepresentation through literature and lack o f respect for Customary Laws as significant problems in writing and publishing. Indigenous peoples have frequently taken the stance that they are best capable and morally empowered to transmit information about themselves. However, whereas it must be acknowledged that there are established genres o f writing and reporting on Indigenous subject matter, and Indigenous peoples would at least like to have an opportunity to have input into certain aspects o f how they are portrayed. Indigenous Peoples, along with various historians, academics and other cultural groups, have argued that it is important for any national and/or cultural group to have input into the documentation o f its history, philosophies and reality, as a basic matter o f cultural integrity. In some respects, Indigenous Peoples need to "tell their own story" and/or exercise some authority over how they are represented even more so than other national and cultural groups because o f the way in which they have been misrepresented by various disciplines which have presented literature in a manner predominately inconsistent with, and often in opposition to, Indigenous cultural concerns. The primary purpose o f the Indigenous literatures and publishing should be to promote the Indigenous Voice by ensuring the highest possible Indigenous-based editorial standards, while at the same time developing and employing that guidelines need to be developed and established in order to respect cultural integrity and complement the emerging distinct Indigenous literary voice and perspectives. Indigenous material should be expressed with the highest possible level o f cultural authenticity, and in a manner that maintains Indigenous cultural integrity. However, as stated by Linda Smith, " A critical aspect o f the struggle for self-determination has involved questions relating to our history as indigenous  Transformation o f Traditional Knowledge 41  peoples and a critique o f how we, as the Other, have been excluded from various accounts."  6  Overturning this tide, therefore, often involves navigating a combined process o f "writing back" against the status quo; and appropriately representing Indigenous knowledge.  Smith, Linda Tuhiwai, (1999). In Decolonizing Methodologies: Research and Indigenous Peoples (pp. 28). London and New York: Zed Books.  6  Transformation o f Traditional Knowledge 42  CHAPTER FOUR: EUROPEAN SYSTEMS: T H E INTELLECTUAL PROPERY RIGHTS SYSTEM One o f the greatest ironies o f the status quo in the interface between European and Indigenous knowledge management systems is that Indigenous systems predate European systems by centuries. This point can be highlighted by the historical reality that when Christopher Columbus landed in the Americas hundreds o f integrated knowledge systems complete with regulatory regimes had been functioning on the Continent for generations, while no such regulatory regimes were in existence in Europe. What would now be termed "piracy," "unauthorized disclosure," and "copyright infringement" was common practice in 16 century Europe. In the period o f time leading up to mid-16 century, European authors' th  th  works were produced and sold without permission (Crean-1993), and inventors began to boycott the trade fair circuit based around Frankfurt because they would commonly have their ideas misappropriated (McDougal-2001). This chapter w i l l briefly outline the development o f the some the important milestones in Europe that lead to the concept o f "Intellectual Property" and the development o f what became IPR system.  Copyright The word copyright came into being as a reference to the sole right o f The Stationers' Company to copy texts, first enacted i n the second half o f the 16 century i n England. The th  Stationers' Company was a London-based booksellers' cartel that enjoyed a legislative monopoly over the trade in books in exchange for assistance in the suppression o f "seditious" and "blasphemous" texts. A n idea akin to the modern notion o f copyright was developed i n 15 century Venice, predating the Industrial Revolution when creations were imbued with th  unprecedented social and economic value. The first such legislative award was made i n 1486  Transformation of Traditional Knowledge 43 to historian Marc Antonio Sabellico. The grant of copyright protection by Venetian authorities was meant to compensate inventors and stimulate invention. In 1545 the Venetian Council of Ten demanded that booksellers secure written proof that their publications had received authorial consent.  1  Copyright as we know it began in 1710 with the enactment in England of the Statute of Anne. Prior to this, publishing was regulated by means of the Licensing Act, which required all books be registered with the Company of Stationers. Thus copyright was not introduced to deal with concerns of authors, but to regulate the trade in books and to assuage the concerns of the booksellers and printers. The mention of the rights of authors in the preamble had more to do with window dressing than substantive protection. The preamble stated: Whereas Printers, Booksellers and other persons have lately frequently taken the Liberty of printing, Reprinting and Publishing or causing to be Printed, Reprinted and Published Books and other writings without the consent of Authors or Proprietors of such Books and Writings to their very great Detriment, and too often to the ruin of them and their families... With the Statute of Anne came a time limit on the rights of authors: twenty-one years for the books already on the Stationers' Register, and up to twenty-eight years for new books. It also introduced the concept of the Public Domain, a commons that encompasses documents and material of all kinds no longer protected by copyright. Regardless of ownership, once the term of copyright expires, Intellectual Property becomes the property of everyone. The physical embodiment of it may continue to belong to individuals or institutions, but the Intellectual Property falls into the Public Domain. However, i f a new work is created which incorporates a work that is in the public domain, the new work is protected.  ' Crean, Susan, Taylor, Caldwell & Young-Ing, Greg, (2003). In Handbook on Creator's Rights (pp 8). Toronto, Ontario: Creators' Rights Alliance. Ibid., 10 2  Transformation o f Traditional Knowledge 44  The enactment o f this statute meant that two authorities governing the rights o f authors existed in England: Common L a w (the law created by decisions of judges), and Statute L a w (the law created by legislation). The decisive case came i n 1769 with the judgment i n Millar v. Taylor. M i l l a r was a London-based bookseller who brought the suit for copyright infringement against Taylor, a rival bookman who had published "The Seasons", a poem M i l l a r "owned." M i l l a r grounded his case in Common L a w arguing that he had purchased the rights to the poem in perpetuity. Taylor based his defense on the Statute o f Anne claiming that Millar's copyright had run its course and the poem was in the Public Domain. The judge decided i n favour o f C o m m o n L a w and M i l l a r saying, "It is just, that an author should reap the pecuniary profit o f his own ingenuity and labour. It is just, that another should not use his name without his consent. It is just that he should judge when to publish, or whether he w i l l publish. It is fit he should not only chose the time, but the manner of publication, how many, what volume, what print. It is fit, he should choose to whose care he w i l l trust the accuracy and correctness o f the impression.. . "  3  The M i l l a r Decision in favor o f authorial rights stood for only five years. It was overturned i n 1774 i n the case o f Donaldson v. Beckett (Donaldson being a pirate publisher, and Becket being an author) which established the notion o f the balance o f interests between creators and users i n copyright.  Droit D 'auteur and Droit Moral M o r a l rights came into being i n France i n the 18 century. The moral rights theory th  holds that a creator is a sovereign individual and therefore his/her work is sovereign and must be so respected. The U N Declaration o f Human Rights states that "Everyone has the right to  3  Ibid., 16  Transformation o f Traditional Knowledge 45  the production of moral and material interests resulting from scientific, literary or artistic production of which he is the author" in Article 27 (2). This is balanced by article 2 (1) which states that "Everyone has the right to freely participate in the cultural life of the community to enjoy the arts and to share in its benefits " (The U N Declaration o f Human Rights - 1 9 5 1 ) . The Berne Convention for the Protection of Literary and Artistic Works o f 1886 was the first international agreement on copyright in Europe. The Convention, enacted a moral rights clause at its Rome Congress in 1928. Article 6 states, "Independently of the author's economic rights, and even after the transfer of said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work which would be prejudicial to his honour or reputation" (The Berne Convention-1928). The concept o f droit moral (moral rights) was introduced which i n turn led to the concept droit d'auteur (author's rights). Droit moral theory holds that the author/creator is sovereign and, therefore his/her work is sovereign and must be respected as such. Droit d'auteur holds that the rights o f the author/creator are natural and inalienable rights and that the author/creator must be identified with and credited for the work.  Originality The key criterion for copyright protection is that the work be "original." Originality does not mean that a work must be unique, one o f a kind, unlike anything else, but rather that it be an original expression o f the author, and not a copy o f another work. The explanation o f one American jurist, Judge Learned Hand in 1936 is often quoted as a definition: "Borrowed the work must not be for the plagiarist is not himself pro tanto an "author"; but i f by some magic a man who has never known it were to compose anew Keat's  Transformation o f Traditional Knowledge 46  "Ode on a Grecian U r n " , he would be an "author", and, i f he copyrighted it, others might not copy that poem, though they might o f course copy Keat's."  4  Ownership Copyright in a work belongs in the first instance to the creator. Subsequently, it may be licensed or assigned, for example, to producers, publishers, and distributors who manufacture and market the work. If a work is produced during the course o f employment as part o f the employee's duties, however, the law stipulates that the rights are the employer's. Similarly, i f a photograph, portrait, engraving or print is commissioned, the person ordering the work and paying for it is deemed to own the copyright, unless there is an agreement to the contrary. There are thus two kinds o f copyright owners operating i n the cultural sector, corporations or businesses and individual creators. In some countries, in order to have copyright protection a work must be registered. In Canada, when someone creates a work, it is automatically protected under the Copyright A c t so long as the creator is Canadian or is resident here, or in a country which is a signatory to the international conventions, such as the Berne Convention, to which Canada belongs. The so-called "Anglo-American copyright systems" (in Canada and the U . S . and influencing, and being adopted in other countries) have a primarily utilitarian logic. In return for enriching the public, creators are allowed to reap some o f the fruits o f their creative labours. But the monopoly thereby granted by the state is temporary, and the law expresses an interest in protecting the public's right to copyright material in the long term through the concept o f the public domain. Hence, copyright's concern with "balance." In public policy terms this can be understood as the tension between individual rights and public freedoms,  4  Ibid.  Transformation o f Traditional Knowledge 47  that is between the property rights o f individuals and the right o f society to its cultural heritage and to the freedom o f information. The Continental system is based on the concept o f the droit d'auteur as the "natural and inalienable" right o f individual creators. The interests o f creators are paramount, not those o f the public, and moral rights are central. Moreover, these are deemed to be human rights, attached to the individual creator. They indicate that besides being a product or service or a performance, a creation is connected to the person o f its creator. Behind the painting, the text, or the film, lies the reputation o f its author.  5  Patents and T r a d e m a r k s The regulation o f patents protecting industrial inventions, the oldest from o f Intellectual Property, goes back to the Venetian Decree o f 1474. However, the concepts o f 6  patents did not get wide spread recognition in Europe with the passage o f the 1624 Statute of Monopolies in the U . K . The Statute o f Monopolies o f 1624 in the U K spoke o f granting patents for "any manner o f new manufactures." The Paris Convention for the Protection of Industrial Property was passed i n 1883. The European Patent Convention was passed i n 1973. Patents are granted to inventors in order to protect their inventions from being copied or used by others for a fixed time period, usually seventeen-twenty years. Most industrialized countries now have a Patent Office (PO) to administer the application and regulation o f patents. The main criteria for the granting o f patents are that the invention must be "new,  Ibid. Vaver, David, (1997). In Intellectual Property Law: Copyright. Patents. Trade-Marks (pp. 1). Concord, Ontario: Irwin Law.  5  6  Transformation o f Traditional Knowledge 48  useful and unobvious ideas with practical application." This can include "new machines, products, processes, or improvements on existing technology."  7  A s European societies became increasingly industrialized, it became apparent that patents and copyright was not sufficient to protect all forms o f Intellectual Property. In the eighteenth century, European countries in the process o f industrialization developed the concept o f "trademark" which was later legislated in the form o f national Trademark Acts. Patent, trademark along with copyright, now make up the current I P R System. Trademarks are used to support a company's claim that its products are unique as compared to similar products from other companies. The main criteria for granting trademarks is that the product is "authentic" and "useful." Most industrialized governments now have agencies to grant and administer trademarks. Once a trademark is applied for in its country o f "origin" the trademark applicant can apply to have it registered in other countries it may wish to export its products to. Some groupings o f countries have multilateral trademark agreements, such as The Madrid Agreement Concerning the International Registration of Trademarks that enables an applicant to be granted trademark in the thirty signatory countries with a single application. Ratification by Canada o f the latest versions o f the Paris Convention (1967) and Berne Convention (1971) requires Canada to bring its Intellectual Property laws i n line with the conventions. In the Irwin Essentials in Canadian L a w Series title Intellectual  Property  Law: Copyright, Patents, Trade-Marks (1997), David Vaver notes that "early in its history, Canada came to protect foreign authors and enterprises alongside its native born - at least its Native born descended from settlers." Vaver further states, "Both the Paris and Berne conventions were highly Eurocentric treaties that ignored the culture o f indigenous peoples.  7  Ibid.,120  Transformation of Traditional Knowledge 49  Native culture was thought to be free for the taking, the product of many and so the preserve of none - except when it was transformed by the mediation of Europeans, whereupon it magically gained cultural legitimacy."  Ibid., 2  8  Transformation o f Traditional Knowledge 50  CHAPTER FIVE: CASE STUDIES IN IPR/TK INTERFACE This chapter w i l l detail examples o f T K that has been misappropriated and otherwise protected or unprotected under copyright, patents and trademarks. The case studies w i l l be analyzed in terms o f the insights they provide about the functionality o f the I P R system and its ability to incorporate T K and the interests o f the Indigenous peoples where the T K originates from. The chapter w i l l highlight concerns that existing regimes o f protection are not able to protect certain forms o f T K ; and, therefore, supporting the argument that new systems o f protection need to be developed and implemented. The three main mechanisms o f the I P R system, copyright, patent and trademark, w i l l be examined through specific cases to show how they have impacted T K . Through the examination o f the case studies some brief analysis o f how each mechanism interacted with T K w i l l also be provided.  Interaction Between T K and IPR Systems A s eluded to earlier, in the process o f transporting European institutions into various parts o f the world occupied by Indigenous people, the I P R system has now been imposed upon the T K system. Many issues have arisen in the past ten years regarding problems resulting from the existing I P R system's apparent inability to protect T K . The main problems with T K protection in the IPR system are: 1) that expressions o f T K often cannot qualify for protection because they are too old and are, therefore, supposedly i n the Public Domain; 2) that the "author" o f the material is often not identifiable and there is thus no "rights holder" in the usual sense o f the term; and, 3) that T K is owned "collectively" by Indigenous groups for cultural claims and not by individuals or corporations for economic claims.  Transformation o f Traditional Knowledge 51 The P u b l i c D o m a i n P r o b l e m Under the I P R system, knowledge and creative ideas that are not "protected" are i n the Public Domain (i.e. accessible by the public). Generally, Indigenous peoples have not used IPRs to protect their knowledge; and so T K is often treated as i f it is in the Public Domain - without regard for Customary Laws. Another key problem for T K is that the I P R system's concept o f the Public Domain is based on the premise that the author/creator deserves recognition and compensation for his/her work because it is the product of his/her genius; but that all of society must eventually be able to benefit from that genius. Therefore, according to this aspect o f IPR theory, a l l knowledge and creative ideas must eventually enter the Public Domain. Under I P R theory, this is the reasoning behind the time period limitations associated with copyright, patents and trademarks. The precept that all Intellectual Property, including T K , is intended to eventually enter the Public Domain is a problem for Indigenous peoples because Customary L a w dictates that certain aspects o f T K are not intended for external access and use i n any form. Examples o f this include, sacred ceremonial masks, songs and dances, various forms o f shamanic art, sacred stories, prayers, songs, ceremonies, art objects with strong spiritual significance such as scrolls, petroglyphs, and decorated staffs, rattles, blankets, medicine bundles and clothing adornments, and various sacred symbols, designs, crests, medicines and motifs. However, the present reality is that T K is, or w i l l be, i n the Public Domain (i.e., the IPR system overrides Customary Law.)  Case Studies After providing some background as to the key reasons behind the I P R systems deficiencies i n protecting T K , the remainder o f the chapter w i l l now turn to some specific examples. Indeed, there are hundreds o f such case studies many o f which are referred to i n  Transformation of Traditional Knowledge 52  the literature and discourse. However, for the purposes o f illustration, the number o f case studies w i l l be limited to two or three under the categories o f copyright, trademark and patent. The cases w i l l attempt to show that an intellectual/legal analysis o f reasons for I R R deficiencies can be made simpler by looking at some concrete examples. A n effort has also been made to provide a balance between positive and negative examples in terms o f I P R / T K interaction i n the selection o f the cases.  Copyright Cases This section w i l l first contrast two cases where Indigenous stories have been published i n children's books. The fist case is one in which a non-Indigenous author overtly appropriated and copyrighted stories, and the second in one in which an Indigenous publisher attempted to adopt aspects o f Customary L a w into the publishing process. A third example o f a case o f music copyright is also included.  The Cameron Case In 1985 the Euro-Canadian author Anne Cameron began publishing a series o f children's books though Harbour Publications based on Westcoast Indigenous traditional stories. These books include: The Raven, Raven and Snipe, Keeper of the River, How the  Loon Lost Her Voice, Orca's Song, Raven Returns the Water, Spider Woman, Lazy Boy and Raven Goes Berrypicking. Cameron had been told the traditional stories by Indigenous storytellers and/or had been present at occasions where the stories were recited. The original printing o f the books granted Anne Cameron sole authorship, copyright and royalty beneficiary, and gave no credit to the Indigenous origins o f the stories. A s the discourse around Indigenous cultural appropriation emerged in the 1990s, Cameron's books came under severe Indigenous criticism; not only on the grounds o f cultural appropriation, but the  Transformation o f Traditional Knowledge 53  Indigenous T K holders asserted that some o f the stories and aspects o f the stories were incorrect. This led to a major confrontation with Indigenous women authors at a women writer's conference in Montreal in 1990. A t the end o f the confrontation Cameron agreed not to publish any more Indigenous stories in the series: however, she did not keep her word and the books continued to be reprinted and new books in the series continued to be published (Armstrong and Maracle-1992). Some minor concessions have been made i n subsequent reprints o f books in the series and new additions. Reprints o f the books that were produced after around 1993/94 contained the disclaimer: "When I was growing up on Vancouver Island I met a woman who was a storyteller. She shared many stories with me and later gave me permission to share them with others... the woman's name was K l o p i m u m . " However, Cameron continued to maintain sole author credit, copyright and royalties payments. In a further concession, the 1998 new addition to the series T'aal: the One Who Takes Bad Children is co-authored by Anne Cameron and the Indigenous Elder/storyteller Sue Pielle who also shares copyright and royalties.  T h e K o u - s k e l o w h Case The Kou-skelowh Series, published by Theytus Books, could be viewed as proper and ethical process within Indigenous cultural confines. The Series are traditional Okanagan stories that have been translated into English, illustrated and made into children's books. The original Kou-skelowh Series was published by Theytus Books in 1984. The redesigned second versions o f the series were published by Theytus in 1991. One o f the most valuable aspects o f the Series is how its development attempted to incorporate Indigenous cultural protocols into the publishing process. Firstly, in the early 1980s, on behalf o f Theytus, Okanagan author Jeannette Armstrong approached the Okanagan Elders Council and asked i f  Transformation o f Traditional Knowledge 54  some traditional legends could be used in the project. When the Elders gave permission for three legends to be used, Armstrong then condensed the legends and translated them into English. The English versions were then taken back to the Elders Council for examination and edited until they were approved. The Elders Council was then asked i f Theytus Books could have permission to publish the stories for the book trade. After lengthy discussions, Theytus was granted permission on the grounds that several conditions were met, including that no individual would claim ownership o f the legends or benefit from the sales. The Elders Council was also then asked to name the series: Kou-skelowh, meaning "we are the people." The series is authorless and instead each book contains the caption " A n Okanagan Legend." The series is also copyrighted to the Okanagan Tribal Council - as the Okanagan Elders Council is not an incorporated entity. The methodology implemented in the Kou-skelowh Series could stand as a model in which concerns with Indigenous cultural protocols were considered, as well as a good example o f the uniqueness o f Indigenous editorial practice. The methodology that was used in the Kou-skelowh Series could also stand as an example o f the uniqueness o f Indigenous editorial practice.  The Mbube Case In its original Indigenous version the "Mbube Song" is traditionally sung with a Z u l u refrain that sounds, to English-speaking people, like "wimoweh." Mbube was a big hit throughout Southern Africa selling nearly 100,000 copies in the 1940s in the recorded version by the South African Solomon Linda who was regarded as the master singer o f the song. L i n d a recorded the tune in 1939 with his group the Evening Birds, and it was so popular that a style o f Z u l u choral music became known as "Mbube M u s i c . " Decca Records  Transformation o f Traditional Knowledge 55  in the U . S accessed a copy o f the recording in the 1950s and passed it on to the singer Pete Seeger, who was apparently enchanted by Mbube, especially the "wimoweh" refrain. Seeger then recorded it with the American folk group The Weavers. American musicologists claim the song really gained notoriety with The Weavers' live version at Carnegie H a l l in 1957. L i n d a was not credited as the writer; it was credited to "Paul Campbell", a member o f the group. The Kingston Trio released their version in 1959 with the writer credit listed as "traditional; adapted and arranged by Campbell-Linda." A subsequent version by The Tokens was performed in an audition with the top R C A production team o f Hugo (Peretti) and L u i g i (Creatore) in 1960. Hugo and L u i g i decided the song needed new lyrics. With George Weiss, they keyed in on what they saw as the songs "jungle origins" and wrote The Lion Sleeps Tonight including the "wimoweh" refrain that was just Seeger's mistranslation o f Linda's original. The Tokens recorded the quintessential pop version i n M a y 1961 at R C A Studios. The song became a huge international hit and was give another round o f popularity and financial benefit when featured as the theme song i n the Disney epic The Lion King. Linda or his heirs have not received any substantial royalties from a song that is perhaps one o f the most well-known worldwide hits.  1  Analysis While the Kou-skelowh case shows that publishers and editors can make moral decisions to respect T K , the Cameron case shows that the copyright system does not protect traditional stories from appropriation should the "author" choose to continue to maintain copyright. The Indigenous T K holders o f the original stories could find no recourse within copyright law. A s such they could only make their grievances known and together with the Indigenous women authors make a moral appeal to the copyright holder. This appeal was ' Brent, Bill & Glenman, Fred. Translated Hits. Available http://www.bobshanon.corn/stories/hesofine.html  Transformation o f Traditional Knowledge 56  only moderately effective in that it only lead to some minor concessions. Although the K o u skelowh case is a more optimistic model for T K within copyright, it fundamentally only represents an innovative use o f the system based on the good w i l l o f the publisher to respect T K protocols. In the Mbube case, Soloman L i n d a also had no recourse within copyright law. According to music copyright, a person(s) who does fresh work on an existing work may, however, claim to be the author o f the resulting product. (Vader-1997).  Patent Cases  Misappropriation o f T K through patents is the area in which the greatest number o f misappropriations exists, as thousands o f patents on T K have been licensed to corporations and individuals worldwide. A t the 7 meeting o f the W I P O I G C i n March 2005, a th  representative from the Indian delegation quoted a recent study in which "a random selection of 300 patents in India revealed that over 200 contained T K " (intervention by Indian Delegation at W I P O I G C 7 - 2005). The extent o f the problem has become a major concern for W I P O , as the body who grants international patents. The organization has conducted several major research studies on the topic i n recent years, some o f which refer to such cases "erroneous patents" and propose mechanisms to revoke such patent licenses. M a n y o f these controversial patent licenses pit small Indigenous communities against large national and multinational corporations. Noting that there are a wealth o f test cases that could be selected, this section w i l l examine two cases: one involving an Inuit corporations unsuccessful attempt to patent Inuit T K in Canada, and the case o f the patenting o f a plant from Southern Africa by U . S . corporations.  Transformation o f Traditional Knowledge 57  The Igloolik Case A n example o f the failure o f the Patent A c t to respond to Inuit designs is the Igloolik Floe Edge Boat Case. A floe edge boat is a traditional Inuit boat used to retrieve seals shot 2  at the floe edge (the edge of the ice floe), to set fishing nets in summer, to protect possessions on sled when travelling by snowmobile or wet spring ice, and to store hunting or fishing equipment. In the late 1980's the Canadian government sponsored the Eastern Arctic Scientific Research Center to initiate a project to develop a floe edge boat that combined the traditional design with modern materials and technologies. In 1988 the Igloolik Business Association (IB A ) sought to obtain a patent for the boats. The IB A thought that manufactured boats using the floe edge design would have great potential in the outdoor recreation market. To assist the I B A with its patent application the agency, the Canadian Patents and Developments Limited ( C P D L ) initiated a pre-project patent search that found patents were already held by a non-Inuit company for boats with similar structures. The C P D L letter to the I B A concluded that it was difficult for the C P D L to inventively distinguish the design from previous patents and, therefore, the I B A patent would not be granted. The option o f challenging the pre-existing patent was considered by the I B A , however, it was decided that it would not likely be successful due to the high financial cost and risk involved i n litigation.  The Taumatin Case Taumatin is a natural sweetener made from berries o f a katemfe shrub that is traditionally used by Indigenous peoples in Central Africa. The protein is about 2,000 times  Ford, Violet. The Protection of Inuit Cultural Property (pp. 20). Paper presented at the meeting of the Creator's Rights Alliance National Conference on Traditional Knowledge, June 4, 2004, Montreal. 2  Transformation o f Traditional Knowledge 58  sweeter than sucrose without any of the health risks. In 1993, researchers from the Lucky Biotech Corporation and the University o f California acquired a U S patent on all transgenetic fruits, seeds, and vegetables containing the gene responsible to producing taumatin (Shand1993). Although taumatin has still not reached the U S and other markets, with the high cost and low production scale o f growing taumatin on plantations in Africa, and a $900 million per year low-calories sweetener market in the U S , it is highly likely that African katemfe plantations w i l l not be used; i f so, the countries where katemfe is grown w i l l not be able to benefit from exporting the berries.  3  Analysis The Igloolik and Tautimatin cases show that T K can be patented by non-Indigenous corporations, leaving the Indigenous originators with no financial benefits and no recourse other than litigation. Typically in patent challenge litigation, corporations have their own lawyers and financial resources to provide effective legal support, whereas local (Indigenous) communities rarely have such resources or advocates (Posey-1996). Even i f a case goes to court, the company may well succeed in convincing the court that its product, use or process is sufficiently different from the original to constitute an invention.  4  Trademark Cases A s most Indigenous communities are far behind in terms o f establishing businesses most trademarking o f T K involves a non-Indigenous corporation trademarking an Indigenous symbol, design or name. A s Chapter Seven on National Initiatives w i l l examine, this practice has been curtailed by laws i n the Philippines, the U.S. and other countries; however  Posey, Darrell & Dutfleid, Graham, (1996). Beyond Intellectual Property: Toward Traditional Resource Rights for Indigenous Peoples and Local Communities (pp. 82). Ottawa, Ontario: International Development Research Centre. Ibid., 94  3  4  Transformation o f Traditional Knowledge 59  it remains rampant i n most countries abound the globe (i.e., the 2010 Vancouver Olympic Logo). Again, many cases could have been examined i n this section but only two have been chosen: one case involving the Snumeymux Band trade marking petroglyphs through the Canadian Patent Office, and one involving an international corporation's patent licence being the subject o f an intense international Indigenous lobbying effort.  T h e S n u m e y m u x Case The Snumeymux people have several ancient petroglyphs located off their reserve lands near False Narrows on Gabriola Island, B C . In the early 1990s non-Indigenous residents o f Gabriola Island began using some o f the petroglyph images i n coffee shops and various other business logos. In the mid-1990s the Island's music festival named itself after what had become the local name o f the most well known petroglyph image, the dancing man. The Dancing M a n M u s i c Festival then adopted the image o f the dancing man as the festival logo and used it on brochures, posters, advertisements and T-shirts. The Snuneymux Band first made unsuccessful appeals to the festival, buisnesses and the Gabriola community to stop using the petroglyph symbols. In 1998 the Snuneymux Band hired M i r n y B r o w n as legal counsel to seek protection o f the petroglyphs (Manson-2003). A t a 1998 meeting with Brown, Snuneymux Elders and community members on the matter, The Dancing M a n Festival and Gabriola business' and community representatives were still defiant that they had a right to use the images from the petroglyphs (Brown-2003). O n the advice o f Murry Brown, The Snuneymux Band filed for a Section 91(n) Public Authority Trademark for eight petroglyphs and was awarded the trademark i n October o f 1998 (Brown-2003). The trademark protects the petrogylphs from " a l l uses" by nonSnuneymux people and, therefore the Dancing M a n Festival and Gabriola Island business  Transformation o f Traditional Knowledge 60  and community representatives were forced to stop using images derived from the petroglyphs.  T h e A v e d a Case In 2000, The Aveda Corporation, headquartered in Minneapolis and N e w Y o r k City, introduced a cosmetic product line called "Indigenous" which included an aroma candle, essential o i l and hair and body shampoo. The products i n the line were infused with cedar, sage and sweetgrass and the symbol o f the line featured on all labeling and promotional material is the Medicine Wheel. The trademark application N o . 75/76,418 under the word "Indigenous" was filed with the U S P O on September 9, 1999 and was granted November 15, 1999. The "Indigenous" trademark application was submitted to the Canadian P O on September 15, 1999 and granted on July, 16, 2003. Indigenous lobbying against the "Indigenous" line began to grow throughout the 2000-2002 i n the U S , Australia and N e w Zealand. The lobbying efforts attempted to disseminate the message that the line was offensive to Indigenous peoples mainly because: the word "Indigenous" was trademarked by a non-Indigenous corporation; and, the Medicine Wheel symbol was being used in a culturally inappropriate manner. The cross-cultural issues were somewhat clouded by the fact that the cedar, sage and sweetgrass were obtained from Native Americans and other Native Americans endorsed the products, such as the following statement by Robby Romero (President o f the Native Children's Survival) on one o f the brochures: "Indigenous ™ express a reverence to Mother Earth, devotion to the environment, and an alliance with Wisdom Keepers o f the W o r l d . " Eventually Indigenous lobbyists from the U S and Australia began working together and managed to get a meeting with Dominique Conseil, president o f Aveda, in September  Transformation o f Traditional Knowledge 61  2003. In the meeting Conseil was persuaded to drop the line and the trademark and the following was stated by Aveda in a press release dated November 4, 2003: A v e d a Corporation today announced the discontinuation o f its Indigenous product line as well as its intention to abandon the 'Indigenous' trademark. The Indigenous collection... w i l l cease production immediately.... The decision was reached following a meeting among representatives o f several indigenous nations o f the Americas and Australia and representatives o f A v e d a . . . ' W e are discontinuing the Indigenous product line to demonstrate our ongoing support and respect for indigenous peoples in their efforts to protect their traditional knowledge and resources,' explained Dominique Conseil, president o f Aveda. ' A v e d a w i l l discontinue marketing any products under the 'Indigenous' trademark and, to emphasize its respect, w i l l begin the formalities necessary to abandon any rights it may have in this trademark,' M r . Conseil added... ' B y its action, Aveda also hopes to stand i n solidarity with indigenous peoples in their quest for recognition o f intellectual property rights i n their traditional wisdom.' Analysis While the outcomes o f the Snuneymux and Aveda cases appear to shed an optimistic light on trademark protection o f T K , a closer examination o f the cases still reveals problems with T K and I P R interaction. The Snuneymux trademark did "work" to protect the petroglyphs; however not as the trademark system is intended. According to trademark theory the system is intended to be "offensive" allowing the rights holder to freely use the mark for the promotion and advancement o f the product into the marketplace. In the Snuneymux case the petroglyphs were trademarked for "defensive" purposes; i.e., so they would not be used. L i k e the Kou-skelowh case, the Snuneymux case represents an innovative use o f the I P R system that negotiated within the systems limitations and found a way to make it work to protect T K . The A v e d a case may be a great Indigenous lobbying victory; but it is not such a great victory for T K protection within the I P R system. In the case, the extenuating circumstances of a strong and organized lobby, a company eager to protect its naturalist, purest, earthy  Transformation o f Traditional Knowledge 62  image, and an open minded President, lead to the canceling o f the line and the trademark. However, like Cameron's minor concessions, the canceling was the result o f a willing concession on the part o f the rights holder based on a moral appeal. There is nothing within the I P R system that would have compelled Aveda to abandon the mark i f it, for example, the company chooses to make an economic decision based on investment in developing and manufacturing the line, and ignore the moral issue presented before it.  Summary The case studies have shown that serious conflicts exist between the I P R and T K systems and lead to the conclusion that it constitutes a major problem which Indigenous peoples must work out with the modern states they are within and the international community. In contrast to Eurocentric thought, almost all Indigenous thought asserts that property is a sacred ecological order and manifestations o f that order should not be treated as commodities.  5  It is clear that there are pressing problems in the regulation o f T K . It is also clear that IPR system and other Eurocentric concepts do not offer a solution to some o f the problems. There have been cases o f Indigenous people using the I P R system to protect their T K . However, the reality is that there are many more cases o f non-Indigenous people using the I P R system to take ownership over T K using copyright, trademark and especially patents. In some such cases this had created a ridiculous situation whereby Indigenous peoples cannot legally access their own knowledge. One recent study undertaken on behalf o f the Intellectual Property Policy Directorate (IPPD) o f Industry Canada and the Canadian Working Group on Article 8(j) concluded:  Battiste, Marie, & Youngblood Henderson James, (2001). Protecting Indigenous Knowledge and Heritage: A Global Challenge (pp. 145). Saskatoon, Saskatchewan: Purich Publishing. 5  Transformation o f Traditional Knowledge 63  "There is little in the cases found to suggest that the IP system has adapted very much to the unique aspects o f Indigenous knowledge or heritage. Rather, Indigenous peoples have been required to conform to the legislation that was designed for other contexts and purposes, namely western practices and circumstances. A t the same time, there is little evidence that these changes have been promoted within the system, i.e., from failed efforts to use it that have been challenged" (IPPD-2002). Such conclusions, along with other conclusions being drawn i n other countries and international forums, and the case study examples discussed in this chapter, appear to support the argument that new systems o f protection need to be developed. Sui Generis models have been proposed and developed in many countries and be discussed i n following chapters.  Transformation of Traditional Knowledge 64  CHAPTER SIX: INDIGENOUS INITIATIVES AND INDIGENOUS/NATIONAL INITIATIVES A s the previous case studies have shown, non-Indigenous individuals and corporations have been able to appropriate Indigenous knowledge for their own means and, in many cases, the I P R system had provided protection and a justification. In such cases, nonIndigenous individuals and corporations have been able to remove T K from within Indigenous cultural contexts and transform it into other contexts unabated and without adhering to any moral or legal code - customary law, author's rights, moral rights, or otherwise - except the I P R system. In contrast, when Indigenous peoples chose to access T K , for traditional use of, to transform it through modern technology or otherwise, they remain culturally bound by Customary L a w and/or other Indigenous principles o f community morality. This chapter w i l l outline some o f these laws and principles that Indigenous peoples adhere to and have adapted to transformative uses o f T K .  Indigenous Paradigm Indigenous peoples have distinct sets o f ethos based on unique national identities that stems from their history, cultures and traditions. Indigenous peoples also have several responsibilities placed upon them through internal cultural imperatives that include portraying reality i n a truthful and honest manner and with mindfulness o f any impact on the community. Through consciousness o f an Indigenous nations history and heritage comes the ultimate responsibility o f being the link between one's ancestors and future generations - a cultural precept that has been referred to as the "time-space continuum." Although each Indigenous nation has evolved in an independent and sovereign manner, there are also many Indigenous universals that unify the vast array o f Indigenous nations and converge  Transformation o f Traditional Knowledge 65  perspectives on many levels and issues. It is crucial for those attempting to engage with any aspect(s) o f Indigenous cultures to have a clear understanding o f how Indigenous peoples perceive and contextualize their traditional and contemporary cultural reality. Indigenous societies have undergone attempted genocide, colonization, constant technological revolution, and the imposition o f foreign legal regimes, yet have dealt with these impositions and the introduction o f new technologies, surviving with the foundations o f their distinct cultures intact. The predominant Western perspective has tended to view the Indigenous traditional culture and the modern technology interface as a paradox. However, Indigenous peoples have shown through their adaptation o f technology that their dynamic cultures do not remain encapsulated i n the past, static and resistant to development. Indigenous theorists Randy Ross (1996), Craig Howe (1998), and Western theorists Andrew Feenberg, L e w i s Mumford, and Jacques E l l u l (1996) have articulated theory on technology that can be applied to the interface between Indigenous cultural traditions and technologies. This chapter w i l l refer to some o f these theoretical models as they pertain to the Indigenous peoples' adaptation o f new technologies. In the ongoing discourse over technology, theories can be broken down into two main schools o f thought: the substantivist view that technology is so substantial that it has a hegemonic power to the extent that it can control and undermine the intent o f its users; and conversely, the instrumentalist view that the users o f technology have the ability to determine the outcome o f the use o f technology. Randy Ross (1996) has contended that, "For Native people, the web o f information networks and multimedia communications apparatus bring a  Transformation o f Traditional Knowledge 66  new dimension to our future survival." He refers back to the early 1880s when the inability 1  to communicate across the nation was a key reason that Indian lands fell to the hands o f the American Government, stating that, for the Americans, "the ability to communicate through telegraph to coordinate troops... was all possible through rapid telegraph exchange v i a Morse Code. For tribes on the other hand, the transfer rate was extremely slow." In summary, Ross argues that Indigenous peoples should take advantage o f new technologies and use them for their o w n purposes. He poses the question, " W i l l the latel880s play themselves out again with regard to Indian access to the telegraph, but this time it's called the Internet."  3  Ross contends that new technologies can support Indigenous cultural and political initiatives; Mumford holds a similar determinist view with regard to technology and culture, writing that "technology is responsive to the ideological and cultural situation into which it is introduced," and further that, "culture can control the development o f its tools." Indigenous 4  peoples have always proven to be adept at adapting new technologies into their cultures. Cree hunters in northern Manitoba and Quebec, for example, found in the 1960s that pursuing moose by snowmobile could lead to significantly more successful hunting outings. However, they still practice such ancient traditional practices as: thanking the Creator, bringing the animal through the doorway backward so that the animal's spirit can leave frontward, and hanging the animal's bones over the doorway to honour its spirit. In opposition to Mumford and Ross, Jacques E l l u l would argue the substantivist view that technology is "uncontrolled and proceeding without plan" and according to "laws o f  Ross, Randy (1996). Native American Culture and the Emerging Internet Technology (pp. 11). First Nations Development Business Alert. September-October. Ibid., 12 Ibid., 13 Woodward, Ron, (1996). Defining Technological Determinism: The Role of Technology in Society (pp. 9). Unpublished. 1  2  3  4  Transformation o f Traditional Knowledge 67  development." According to E l l u l , then, the Cree hunters should have lost part o f their 5  traditional hunting practices with the introduction o f the snowmobile and turned more toward hunting as an economic industrial activity. However, they clearly did not. (Have you seen moose meat in the cooler at the Superstore?) To the contrary, the Cree hunters continue today to practice the ancient ceremonies while hunting for sustenance, and, i n fact, the snowmobile serves to enhance the cultural practice o f moose hunting i n making it more productive and efficient within the confines o f the Cree culture. E l l u l ' s substantivist view would argue further that technology "adds something while taking something away." Again, 6  in this case, nothing o f any cultural significance has been taken away. The way i n which the Cree hunters have incorporated the snowmobile as a new technology into their traditional culture can also be held as a model for the incorporation o f other mediums and technologies, including multimedia technologies, into Indigenous cultural practice.  Indigenous Experience with Print Media Before examining Indigenous peoples' interface with multimedia technology, it is useful to consider the Indigenous experience with print media. In the Canadian/North American historical context, early writings about Indigenous peoples were done by explorers, missionaries, anthropologists, and literary writers from the 16 to the mid-20th centuries. th  Most o f this literature provided little or no insight into cultural realities, yet it became the status quo and influenced the intellectual foundations for European-based society's perception o f Indigenous peoples as underdeveloped. Beginning in the 1960s, Indigenous authors started to develop an Indigenous literary voice drawing from T K and modes o f expression (such as Oral Tradition and storytelling  Ibid., 13 6 Ibid.,16  5  Transformation o f Traditional Knowledge 68  technique) and contemporary Indigenous experience and perspectives. This body o f literature, discussed previously i n Chapter Four, has gradually developed and increased i n scope and cultural importance, and now functions on three key levels: 1) as national bodies o f literature building upon the T K base and oral history o f individual Indigenous nations; 2) as a pan-Indigenous body o f literature that can be claimed and identified with by Indigenous peoples within modern post-colonial nation states and/or throughout the world; and 3) as an authentic Indigenous voice that non-Indigenous peoples can access to gain understanding and insights on Indigenous cultural knowledge and perspectives, offering a more authentic alternative to the vast body o f status-quo literature about Indigenous people by nonIndigenous writers. The emergence o f Indigenous publishing in the 1980s has further contributed to the Indigenous V o i c e by introducing Indigenous-controlled editing and publishing practices. Culturally based Indigenous editorial practices have established and incorporated guidelines that do not necessarily follow established European-based editorial rules and practices. A n Indigenous literary style is, therefore, emerging using these unique editorial guidelines that respect cultural integrity and T K , and complement the emerging distinct Indigenous literary voice. Some o f the culturally-based practices that are being used or adopted in editing Indigenous texts are: utilizing principles o f the Oral Tradition within the editorial process; respecting, establishing, and defining Indigenous colloquial forms o f English; incorporating Indigenous traditional protocol in considering the appropriateness o f presenting certain aspects o f culture; and consulting and soliciting approval o f Elders and traditional leaders i n the publishing o f sacred cultural material. This brief discussion on Indigenous peoples' experience with print culture has been focused on the Canadian/North American example. However, the experience has been  Transformation o f Traditional Knowledge 69  similar throughout the Indigenous and colonial world, with the noted exception that Indigenous publishing has not yet emerged i n many parts o f the Indigenous world.  Indigenous Customary Laws and Technology The attempted genocide, colonization, and constant technological revolution, introduced by another society, has been the result o f the impositions o f European institutions on Indigenous institutions over the past five hundred years. This period has coincided almost exactly with the time period that Western society underwent its "Five hundred years o f print culture" (as Guttenberg's invention o f the printing press and Columbus' arrival i n the Americas coincidently occurred within a five-year period). Yet, even under these difficult circumstances, Indigenous peoples have dealt with the imposition o f legislation and institutions and the introduction o f new technologies, and, moreover, have survived, evolved, and developed with the foundations o f their T K intact. Craig Howe (1998) contends that Indigenous peoples should always "carefully consider the ramifications for tribalism (i.e., Indigenous traditional institutions) before advocating universal participation in the digital revolution in cyberspace (i.e. new technology). Indigenous peoples have adapted into their various unique and distinct 7  contemporary forms by adhering to two important cautionary principles: 1) that incorporating new ways o f doing things should be carefully considered in consultation with elders, traditional people, and community; and 2) i f it is determined that a new technology or institution goes against fundamental cultural values and/or might lead to negative cultural impact, then it should not be adopted. These principles exist, in one variation or another, in most Indigenous groups dating back to ancient times.  7  Howe, Craig, (Fall 1998). Cyberspace is No Place for Tribalism, (pp. 2)Wicazo SA Review.  Transformation o f Traditional Knowledge 70  Indigenous peoples found ways to incorporate traditional institutions and aspects o f culture and new mediums into the contemporary context. The view that new mediums, such as text and print, can be adapted into Indigenous cultures and can support Indigenous political and social initiatives is consistent with instrumentalist theorists, such as Mumford who has stated, "Technology is responsive to the ideological and cultural situation into which it is introduced," and further that, "culture can control the development o f its tools."  8  Summary Contrary to Feenberg's statement that, "once the progress o f technology is established it becomes a way o f life with no way o f turning back other than a complete return to a traditional simplistic order," (1996) the practices o f Indigenous authors, publishers and hunters illustrates that intelligent and carefully purposed projects can transform ancient traditions and cultural practices into the modern age uncompromised and with cultural significance and integrity upheld. Perhaps these cases o f Indigenous peoples' use o f technology serve as a model for Western society as it begins to confront the many complex cultural issues brought on by the onslaught o f multimedia. Indigenous peoples, too can enter the technological age in stride least they become, i n the words o f Randy Ross, "road k i l l on the Information Highway."  9  M a k i n g reference to Ross's (in)famous statement, Craig Howe adds another cautionary note, stating that Indigenous peoples should, "use cyberspace to access and disseminate information on their own terms and for their own purposes [because] one can get connected and have a voice in the global village or else be neglected and become r o a d k i l l . "  10  Woodward, Ron, (1996). Defining Technological Determinism: The Role of Technology in Society (pp. 9). Unpublished. Ross, Randy (1996). Native American Culture and the Emerging Internet Technology (pp. 11). First Nations Development Business Alert. September-October. Howe, Craig, (Fall 1998). Cyberspace is No Place for Tribalism, (pp. 2)Wicazo S A Review. 8  9  10  Transformation o f Traditional Knowledge 71  Just as there are phases o f misrepresentation o f Indigenous peoples through print media, Hollywood films, and other mediums, that were to the detriment o f the image o f Indigenous peoples, there is also misrepresentation and exploitation o f Indigenous peoples and their knowledge in multimedia and other transformations o f T K . However, just as with the Indigenous experience with print media, these new forms o f exploitation and potential problems can be avoided through Indigenous creative and editorial control and awareness and respect o f Indigenous cultural protocols. Western society is in the midst o f a major paradigm shift where the documentation, dissemination, and acquisition o f knowledge is moving from a print-based to a multimedia model. The impact o f this radical shift has caused deep stress around fear that society and the human condition w i l l change dramatically along with it. Indigenous peoples' interface with technology, and other aspects o f modernity, can be held as an example that, i f the technological revolutions are intelligently managed, Western civilization should survive as we know it - for better or worse.  Indigenous/National Initiatives This section w i l l discuss initiatives to protect and/or regulate T K that have been developed and implemented by national governments together with Indigenous peoples. In some cases these initiatives have been harmonious, involving national governments and Indigenous peoples working together. In other cases the relationship has been adversarial, involving Indigenous groups confronting national governments through court cases or lobbying. It w i l l begin with the recent Indigenous Knowledge Systems (IKS) Policy developed and maintained by South Africa. This section w i l l also provide an historical  Transformation o f Traditional Knowledge 72  summary o f how issues and legal challenges related to T K have progressed in Australia and Canada. The development o f certification marks in Australia and N e w Zealand w i l l be outlined, as well as protocol guidelines developed in Australia. It w i l l also discuss some specific initiatives in Canada within Department o f Canadian Heritage, Industry Canada, and Indian and Northern Affairs Canada ( I N A C ) . The unfolding discourse within Canada w i l l also be discussed with regard to potential solutions to this central problem.  South Africa's Indigenous Knowledge Systems Policy The Indigenous Knowledge Systems (IKS) Policy, developed and to be maintained by South Africa's Indigenous peoples, was passed by The Minister for Science and Technology of South Africa on February 2, 2006. The I K S Policy pervades the lives and the belief systems o f a large proportion o f the country's population. Such Indigenous Knowledge manifests itself in areas ranging from cultural and religious ceremonies to agricultural practices and health interventions. In the Policy "Indigenous Knowledge" ( I K - as it is referred to i n the Policy) is generally used synonymously with "traditional and local knowledge" to differentiate the knowledge developed by and within distinctive Indigenous communities from the international knowledge system generated through universities, government research centres and private industry. Under apartheid, I K S in South Africa, as well as practitioners within such systems, were marginalized, suppressed and subjected to ridicule. During the apartheid regime, across every measurement o f socio-economic status and well-being, and across all age groups, geographical circumstances and both genders, Indigenous peoples were severely disadvantaged. The I K S Policy was passed partly because many of the disadvantages continue and "have the potential to increase and further entrench the disparity between Indigenous and other sectors o f society over the coming decades, unless greater effort is  Transformation o f Traditional Knowledge 73  made now to redress the ongoing inequalities, not least o f which is in respect o f the knowledge systems o f indigenous communities and specific knowledge traditions within these, such as guilds o f traditional healers and specific knowledge traditions held by women within communities."  11  Juxtaposed against the backdrop o f centuries o f oppression exists an indisputable wealth o f I K that has survived and in some cases, has even grown within the protective confines o f African societies and communities. M u c h o f the I K that has persisted has shaped and informed African thinking on issues such as art, music, religion and theology, governance, justice, health and agriculture. Personal and cultural identities, including social belief systems, have remained strong and vibrant through the repeated practice o f observance o f I K tenets, i n spite o f the very hostile socio-political environment characteristic o f colonialism and apartheid. Frequently in South Africa women have been the custodians o f these bodies o f knowledge. The creation o f the I K S Policy has involved a range o f Government Departments. For example, the Department o f Arts and Culture has spearheaded a national language policy and is investigating the promotion and copyright o f Indigenous music and art forms. Traditional Health Practitioner's legislation has been developed by the Department o f Health and mandates the establishment o f a regulatory body to be known as the Traditional Health Practitioner's Council that w i l l preside over the activities o f approximately 200,000 South African traditional healers. The Department o f Science and Technology (DST) has established a programme to support research on medicinal plants and other aspects o f I K S at the National Research Foundation. The Policy framework acknowledges that I K S , however, need a broader all-encompassing policy framework. Therefore, a coordinating mechanism " Indigenous Knowledge Systems Policy pp.3. (2006, April 24-28). Geneva, Switzerland: Submitted to WIPO by South Africa, Geneva.  Transformation o f Traditional Knowledge 74  has been established through an Inter-Departmental Committee on I K S chaired by D S T . This policy proceeds on the basis that I K S , by their very nature require a cooperative approach. Complementary and contributory initiatives in other sectors are under active development and contribute to a fuller picture o f the South African I K S environment. Clearly, it w i l l not be possible to prescribe in detail to sectors that have unique features o f their own. Nevertheless, it w i l l be necessary to create several new cross-cutting functions to underpin the optimal performance o f I K S in South Africa. The purpose o f this aspect o f the Policy is to  affirm, promote and debate I K S ,  and to create a sense o f community across a  diverse range o f practitioners. These functions are as follows: •  A high-level advisory function to Government on I K S matters reporting to the Minister o f Science and Technology;  •  A n I K S development function, including scholarship, research development, the maintenance o f a record system for I K and the promotion o f networking structures among practitioners, to be located in the D S T ;  •  Legislation and administration capacity to protect intellectual property associated with indigenous knowledge, to be administered by the Department o f Trade and Industry;  •  Establishment o f an I K S Fund to support institutions that w i l l assist Indigenous and local communities in the categorization and characterization o f their biological resources, innovations, practices and technologies;  •  A formal system to record I K must be created.  12  South Africa's Indigenous Knowledge Systems Policy is the first official national policy on Indigenous Knowledge to be implemented in the world and w i l l likely become a model for other countries. The Policy is intended to work in conjunction with the African Union's M o d e l Legislation (discussed in the preceding chapter).  12  Ibid., 7  Transformation o f Traditional Knowledge 75  Canada and Australia: Moral and Collective Rights In 1931 Canada became the first o f the copyright countries to enact a M o r a l Rights clause i n its domestic legislation. The M o r a l Rights clause, Section 12 (5) was adopted by Canadian legislators as a requirement to this country's ratification o f The Berne Convention in 1928. In fact, paternity and integrity rights o f authors o f dramatic and operatic works and musical compositions had been recognized by the Criminal Code, enacted i n 1915 (Section 508B). Furthermore, Quebec's Theatrical Performance Act, passed in 1919, provided for the protection o f the M o r a l Rights o f authors along the lines o f the Criminal Code's Section 508B, including penal sanctions for the violation o f those rights (Crean, Taylor and YoungIng-2003). There have also been some significant developments in the area o f C o m m o n L a w in Canada and Australia that should be examined for their relevance with regard to establishing T K regulations. The following section w i l l examine these cases particularly for their disclosures for potential development o f T K regulation. T w o prominent cases have been advanced by non-Indigenous Canadian artists to test Moral Rights application to creative  works: Snow v Eaton Shopping Centre and Theberge v Galerie d'Art du Petit Champlain Inc. The Snow Case is one o f the most widely noted Moral Rights cases i n Canada involving action by sculptor Michael Snow regarding Flight Stop, a work comprising sixty bronze geese aloft i n the atrium o f the Eaton Centre. A s part o f the Centre's 1981 Christmas decorations a red ribbon was tied around the neck o f each sculpture, although no permanent harm or change to the sculpture was intended. Snow claimed that the ribbons were prejudicial to his honour and reputation, constituting the requisite "distortion, mutilation or other modification" under the Canadian legislation. In 1988, the H i g h Court o f Ontario ruled in favor o f artist Michael Snow, claiming that his Moral Rights had been infringed as the ribbons infringed on the integrity o f his distinctive sculpture. Snow obtained a judicial order  Transformation o f Traditional Knowledge 76  requiring that the "ridiculous" ribbons be removed. Justice O'Brien o f the Ontario H i g h Court of Justice held that "prejudicial to honour and reputation" involves a subjective element or judgment on the part o f the author, appropriate as long as it is reasonably arrived at. O'Brien noted that Snow was respected within the international artistic community.  13  In M a r c h 2002 the Supreme Court o f Canada ( S C C ) issued a decision in the case o f Montreal artist Claude Theberge. In the Theberge Case the artist, Claude Theberge, sued an art gallery who had purchased one o f his drawings. In the subsequent case the S C C illustrated perceived conflicts over the notion o f Moral Rights in Canada's C i v i l L a w and C o m m o n L a w traditions. The Galerie d'Art du Petit Champlain acquired rights to make a small number o f paper reproductions o f art by Claude Theberge. However, it transferred ink from Theberge's paper-based works onto canvas, in doing so destroying each paper version. Theberge gained a pre-trial order seizing the resultant canvases. The S C C was asked to determine the extent to which an artist can control an authorized reproduction o f a work used or displayed by a third party purchaser. Some judges on the Supreme Court held that there was no reproduction, because no 'copies' were made (transfer o f ink was considered a modification rather than a copy). They criticized Theberge for preemptive action, commenting that evaluation o f a potential breach o f moral rights calls for the exercise o f a good deal o f judgment. A distortion, mutilation or modification o f a work is only actionable i f it is to "the prejudice o f the honour or reputation o f the author." The S C C ruled against Theberge saying that "respect must be given to the limitations that are an essential part o f the moral rights created by Parliament" (Theberge v Galerie d'Art du Petit Champlain Inc- 2002).  13  Calson Analytics Note moral rights cases (1996). Available www.calson.com  Transformation o f Traditional Knowledge 77  Moral Rights and Traditional Knowledge O f these various European Intellectual Property concepts and regulations that have been applied to T K , and in lieu o f the widespread non-Indigenous mis-appropriation o f T K , M o r a l Rights draws close parallels with what Indigenous Peoples are seeking for the regulation o f T K . M o r a l Rights capacity to protect artistic work against "any distortion, mutilation of, or derogatory action in relation to the said work which would be prejudicial to honour or reputation" is a concept that is also in line with aspects o f Indigenous Customary Laws. However, the apparent contradicting messages i n the Snow and Theberge decisions leaves M o r a l Rights in a diminished state in Canada at the present time. After these two cases it is not clear how M o r a l Rights law would serve to protect T K in Canada, and further test cases are required to provide clarification.  The Carpets Case Imported carpets containing direct copies o f the artworks o f three Aboriginal artists were discovered coming into the Australian market in 1993. Banduk Marika, the only remaining living o f the three artists, initiated a case against the importer Indofern, who was importing the carpets from a carpet company based in Viet N a m (a country which is not a signatory to The Berne Convention). M a r i k a ' s painting Djanda and the Sacred Waterhole, one o f the images on the carpets, was contained in an educational portfolio produced by the National Australian Gallery. In the ensuing investigation surrounding the M* vs Indofern Case a copy o f the portfolio was found i n the Viet N a m carpet factory-establishing the portfolio as the source o f the appropriation. M a r i k a argued that the image was under the communal ownership o f the Rirratjingu Clan and was o f great cultural significance as it forms part o f the Rirratjingu Creation Story. She further explained that the traditional Rirratjingu custodians had granted her permission to  Transformation o f Traditional Knowledge 78  paint the image and reproduce it in the portfolio for the purposes on educating people on Aboriginal culture, but not for any commercial use. Therefore, the carpets constituted an "Unauthorized Reproduction under Customary L a w . " A n d that, in addition, under Section 37 o f the Copyright A c t it "is an infringement to o f copyright to import copies o f artistic works without the license o f the copyright owner for the purposes o f sale." Justice V o n Doussa was satisfied that Indofern had constructive knowledge o f the infringement in that a "reasonable person, particularly one about to engage i n the business o f selling carpets in Australia" had to have knowledge o f the facts (Jenke-2003). Apart from the copyright infringement recognized in the Case, Justice V o n Doussa also allotted damages for "Culturally-Based Harm"; however, as M o r a l Rights were not introduced in the Australian Copyright A c t until the Copyright Amendment (Moral Rights) A c t 2000, no specific Moral Rights implications for T K were brought into the case.  BulanBulan vs. AnorR&TTextilesPTYLtd. In 1996 fabric was discovered on the market in Australia that was derived from part o f Aboriginal Artist John Bulan Bulan's painting Magpie Geese and Water Lilies at the Waterhole, which depicted part o f the Ganalbingu and Y o l n g u peoples T K . M r . Bulan Bulan noted that, under Ganalbingu law, ownership o f land has a corresponding obligation to create artworks, design, songs and other aspect o f ritual and ceremony that go with the land. He argued further that unauthorized reproduction o f the artwork threatened the whole system i n ways that underpin the stability and continuance o f Y o l n g u society (Jenke-2003). Justice V o n Doussa (the same judge as i n the Carpet Case) recognized Bulan Bulan as the copyright holder o f Magpie Geese and Water Lilies at the Waterhole; but did not recognize the claim of joint ownership (i.e. ownership by Bulan Bulan and the Ganalbingu community) on the grounds that it did not constitute a "work of joint authorship" under  Transformation o f Traditional Knowledge 79  Section 10 (1) o f the Copyright A c t (i.e. a collaboration between two or more authors). Although the Bulan Bulan Case extended copyright protection for T K where a portion o f the original work was copied and altered, it still does not extend that protection to T K i n a nonmaterial form, nor did it recognize the Indigenous group as copyright holders in perpetuity. Again, as with the Carpets Case, no significant Moral Rights issues entered the case as it was also within Australia's pre-Moral Rights era.  T h e W a i 262 C l a i m The Waitangi Tribunal was established in N e w Zealand in 1975 and given the mandate to investigate claims by M a o r i under the Treaty o f Waitangi as to whether or not and to what extent that the Crown or the N e w Zealand government, has honored the principles o f the Treaty o f Waitangi signed between chiefs and tribes and her Majesty Queen Victoria in 1840. The W a i 262 C l a i m is a claim introduced by six tribes in 1991 throughout N e w Zealand to the Waitangi Tribunal for recognition and protection o f the cultural and intellectual heritage rights in relation to indigenous flora and fauna and their T K . The C l a i m includes all native species in N e w Zealand, M a o r i arts and designs and T K , and raises concerns in opposition to genetic tampering with the D N A structures o f native flora and fauna (Soloman-2001). The W a i 262 claim itself arose from a concern o f two elder women in 1988 when they discovered that a number o f native cultivars o f the kumara, the native sweet potato o f N e w Zealand, brought here by the M a o r i , had been deposited i n a research institution i n Japan. The W a i 262 C l a i m also raises issues to do with international instruments like the draft Declaration o f the Rights o f Indigenous people, the Convention on Biological Diversity, and I L O Convention 169. Hearings to the C l a i m are ongoing and continue to raise issues to do with the government's responsibility to M a o r i under the Treaty.  Transformation o f Traditional Knowledge 80  The Australia Council/Aboriginal and Torres Strait Islander Arts Board Protocol Guidelines H i g h profile Indigenous lobbying i n Australia together with various test cases has resulted in relatively high levels o f success (compared to other countries) for the Indigenous T K movement i n Australia in the late 1900s and afterwards. The momentum o f the movement reacted in a strategic and well organized manner following up on the 1998 Our Culture: Our Future report, which also signaled that some agencies o f the Australian Government were willing to work with Indigenous to resolve the issues. One o f the tangible results from the Indigenous T K movement in Australia has been the 2002 Australia Council/Aboriginal and Torres Strait Islander Arts Board Protocol Guidelines. In the development o f the Guidelines the Australia Council o f the Arts worked closely with Australia Council/Aboriginal and Torres Strait Islander Arts Board which - being a relatively well supported and independent body (compared to the Aboriginal Secretariat o f the Canada Council for the Arts, for example) - was able to consult widely with Indigenous peoples throughout the process. The preamble to the guidelines states that, "In Indigenous cultures the artist is a custodian o f culture, with obligations as well as privileges. Indigenous people's right to own and control their cultural heritage is known as 'Indigenous cultural and intellectual property rights'" (The term is used in Our Culture: Our Future to refer to those rights as they are developing within international law). In the Performing Cultures Guidelines the term "Indigenous heritage" is used to refer to these rights to bring the terminology more i n line with language being used in international forums. The Guidelines define Indigenous heritage  Transformation o f Traditional Knowledge 81  as: "comprises a l l objects, sites and knowledge transmitted from generation to generation. Indigenous people's heritage is a living heritage."  14  The Guidelines also state that: " A n Indigenous person's connection with the land, water, animals, plants and other people is an expression o f cultural heritage. Writing, performing, song, the visual arts and more recently, new media, are ways o f transmitting Indigenous cultural heritage. A s primary guardians and interpreters o f their cultures, Indigenous people have well-established protocols for interacting with their cultural material. N e w situations also require cultural protocols." The Guidelines reflect the complexity o f 15  Indigenous Australian culture, and provide information and advice on respecting Indigenous cultural heritage. Although each o f the guides address cultural protocols specific to an Indigenous art form, they are shaped by the same underlying principles - the backbone o f the protocols. The five guides in the series are: •  Writing Cultures  •  Performing Cultures (Drama/Dance)  •  Visual Cultures  •  Song Cultures  •  N e w M e d i a Cultures  The Indigenous protocol guides are intended to have relevance for everyone working i n or with the Indigenous arts sector, including: •  Indigenous and non-Indigenous artists  •  People working within related fields o f  •  Indigenous art form practice  •  Federal and state government departments  14  The Australia Council/Aboriginal and Torres Strait Islander Arts Board Protocol Guidelines, 2002.  15  Ibid  Transformation o f Traditional Knowledge 82  •  Industry agencies and peak organizations  •  Galleries, museums and arts centres  •  Educational and training institutions  •  Indigenous media and targeted mainstream media  The Australia Council/Aboriginal and Torres Strait Islander Arts Board Protocol Guidelines represent a productive primarily Indigenous initiative developed with support by a national government agency. The guidelines are non-binding i n that they do not have enforcement mechanism; rather they are a moral code which people i n the country should be obliged follow i n the use o f T K .  The Use of Trademarks in New Zealand, Australia and Canada Two particular types o f trademarks, Certification marks and Official marks, have been used to protect T K in Australia and N e w Zealand and could serve as a model for Canada and other counties. Certification marks are a particular kind o f trademark that are employed to identify wares or services which meet a defined standard. These can be owned by one person and licensed to others. I f registered a mark can be used as a label to indicate certain qualities including the source o f a product. Official marks refer to specific types o f marks that are registered by governments and public institutions. Section 9(n)(iii) o f Canada's Trade-marks Act defines an official mark as one that is: "adopted and used by any public authority, i n Canada as an official mark for wares or services..." In one sense, official marks are less powerful than trademarks as they can remain in use by a private entity, i f they were being used by that entity prior to the public authority giving public notice o f an application for an official mark. A n official mark must be used in association with wares or services before a request for publication can be made.  Transformation o f Traditional Knowledge 83 The toi i h o ™ was registered specifically to promote and sell authentic M a o r i arts and crafts and authenticate exhibitions and performances o f Maori arts by Maori artists i n N e w Zealand, to distinguish Maori crafts from other arts and crafts and to assist M a o r i retain control o f their  ~mod.il m'dfdB.  taonga - or M a o r i knowledge. The creation o f the mark was facilitated by Te Waka T o i , 16  the M a o r i arts board o f Creative N e w Zealand, in consultation with Maori artists. The trademark was designed and created by M a o r i artists. The authenticity component o f the mark guarantees that the product was created by a person o f Maori descent. There are three versions o f the mark. The toi iho™ maori made mark is accompanied by two companion versions known as the mainly maori mark and the maori co-production mark. The three versions o f this design are the same with the exception that the maori made mark is blue and grey and the other two are red and grey. The toi iho™ mainly maori mark is grey and red for groups o f artists, most o f whom are o f M a o r i descent, who work together to produce, present or perform w o r k s .  17  The other toi iho™ maori co-production mark acknowledges the growth o f innovative, collaborative ventures between M a o r i and non-Maori and is for M a o r i artists who create works with persons o f non-Maori descent to produce, present or perform works across art forms. Business entities cannot apply to use the trademark. Only individual artists may apply and groups o f artists working together to create single works may apply to use the M a o r i made mark. Authorized users o f the M a o r i made mark may use the mark to promote and market their works for one year and must apply for renewal o f their license annually. 16  17  Eikland, Mark, Models for New Marks of Authenticity in Canada (pp. 20). Unpublished. Ibid., 35  Transformation o f Traditional Knowledge 84 The trademark is administered by Te Waka T o i in Creative N e w Zealand who are the kaitiaki (guardians) o f the trademark until it is well-established. Applications to use the mark are assessed by a panel o f Maori art form specialists including board members. A l l applicants must prove they are o f Maori descent and must provide samples o f their product which is assessed in terms o f Maori component; design and media; process and technique used; level o f skill and expertise required to produce the work; and the aesthetics o f the work. A l l licensed users must agree to abide by the Rules which govern all matters relating to the mark including the manner in which the mark may be used and any conditions applying to their licenses. The success o f the trade-mark is clearly stated as reliant on M a o r i artists support, and effective marketing and promotion strategies.  18  In Australia, trademarks are used by Indigenous peoples to identify a wide range o f goods and services. These include arts, cultural services, food preparation, medicines, tourism services, Indigenous-run business, and Indigenous government agencies. For example, Indigenous words and designs; and English words that have a particular meaning or significance for Indigenous Australians (i.e. the words "dreaming" and "dreamtime" used to describe Indigenous traditional concepts) are found to be included on the Register o f Trade Marks. Indigenous words and designs that are a continuous expression o f the cultures o f the Indigenous peoples and represent a connection between the Indigenous people and their land have also been trademarked. For example, language words and clan names such as Eora, Arrente (Aranda), Monaro, Uluru and Wik are important identifiers o f Indigenous peoples. There have been several attempts by Indigenous groups to trade mark Indigenous words related to plants or animals to protect them against the commercial exploitation by non-  Creative New Zealand, New Zealand Arts Council (2003). Backgrounder [Creative New Zealand's website]. Available www.toiiho.com/aboutus. 18  Transformation o f Traditional Knowledge 85 Indigenous businesses. For example, the Bandjalang Aboriginal Corporation applied for registration o f trademarks for the words "Gung-Guyar" and " B u l a m " in the relevant class for soaps, perfumery, essential oils and body lotions.  19  The Indigenous arts network is facilitated by arts centres that promote the creation, distribution and sale o f Indigenous visual arts and craft throughout Australia. These centres use trademarks in the course o f their trade. For example, Munupi Arts has a logo that it puts on letterhead, invoice and promotional material. The mark is not registered but has been i n use by the organization for over ten years. Munupi incorporate the logo into the promotion and labeling o f artistic works (Jenke-2003). Some Centres have registered their marks with Intellectual Property Australia. For instance, Desart is a regional arts organization based in A l i c e Springs. Desart has a registered trademark that is used by members o f the organization on promotional material for original artistic works and for licensed manufactured products. The most well-known application o f this concept i n Canada is the Igloo symbol, which is used to distinguish authentic Inuit art. The Department o f Indian Affairs and Northern Development ( D I A N D ) registered the Igloo symbol as a trademark on September 5, 1958 and ownership rests with the federal government. The government registered the mark largely i n response to increased market demand, the proliferation o f imitations, and need to protect Inuit creators. Registering the mark also made it easier for customs to collect tariffs imitations and deter their entry into the country. The government has made certain commitments to owners o f the Igloo trademark and incurs certain obligations. It has  World Intellectual Property Organization (2003). Minding Culture: Case Studies on Intellectual property and Traditional Cultural Expressions, (pp. 88). Geneva, Switzerland: Janke, Terri.  Transformation o f Traditional Knowledge 86 committed to promoting the trademark, which appears successful to date as the actual tag indicating authenticity has been copied (Eikland-2003). The government plays a significant administrative role as the owner o f the trademark. D I A N D provides licenses to cooperatives, distributors and agencies who are then authorized and required to place the tag on authentic products. There are approximately ten licensees at this time, who also have obligations to meet i n order to place the tag on a carving. Each product must have a label that states the artist's name, where and when the carving originated, and provide the title and number that was given to the carving. D I A N D maintains a list, which it provides to foreign customs agencies and retailers to ensure the product is authentic and can be marketed in that manner. Examples o f entities that have met the Trademarks Act public authority test and established official marks include the Osoyoos Indian Band Council for "Inkaneep"; National Native Role M o d e l Program; Kahnawake for a "Dream Catcher Design"; Campbell River Indian Band Development Program for the "Discovery Harbour" mark and design; and the Peigan Band Administration o f Alberta for a "Hide and Feathers D e s i g n . "  20  The issue was o f a protective mark was also raised frequently in C R A Indigenous Artist's Research Project in 2003-2004 (which was commissioned by Industry Canada). Most participants thought Certification marks could be useful, i f they were accompanied with a proper public awareness campaign about the immorality o f fakes in the market. A Gallery Director, for example, thought the Igloo Tag worked well for the Inuit carvers in the market. During the Project it was learned that Tsimshian artists started talking about a mark led by one o f their senior artists, and that Haida artists have been discussing the development o f a Haida artwork stamp. A concrete example cited i n the symposiums to support Certifications  2 0  Eikland, Mark, Models for New Marks of Authenticity in Canada, (pp. 14) Unpublished.  Transformation o f Traditional Knowledge 87 Marks is the Northwest Coast style carved masks that have come into the Northwest Coast market from Indonesia. Indonesian carvers have made the masks from photographs and now sell them into the Northwest Coast market at a lower price than the authentic masks ( I A R P Final Report-2004). Comments from Indigenous artists on certification marks in the telephone interview portion o f the Project ranged from the following: "It would be difficult to administer, and who would decide i f it's authentic?" (Artist 9) "I don't see how Certification marks could be regulated in Canada." (Artist 3) "Certification marks in Canada? Emphatically, Y E S . " (Indigenous Academic 2) "I feel that this protection mark is a good idea- anything that supports the Native artist to make a viable living and stops Asian corporations from mass production. We need to market ourselves correctly. Make people want the real thing not the artificial simulation. I don't feel we need to prostitute ourselves off, we just need to be honorable and respectful and create a viable l i v i n g . " (Student 2) ( I A R P Final Report on Telephone Interviews -2004) Although the Certification Mark issue was not referred to directly i n the recommendations o f the Department o f Canadian Heritage National Gatherings on Indigenous Knowledge, some o f the following recommendations allude to it: Canada needs guidelines or other means o f authorizing use o f things like the Inukshuk; the Government o f Canada needs to support the respectful representation o f Aboriginal peoples and products. Establish councils responsible for certifying/approving authenticity o f cultural items/products. Develop a rating system that could be applied to art galleries (akin to the star system to indicate quality o f hotels and restaurants). The system would indicate levels o f authenticity o f Aboriginal art being sold through use o f a gold, silver and bronze feather system. This could be included in tourism brochures and pamphlets (Draft Report o f the National Gatherings on Indigenous Knowledge-2006).  Transformation o f Traditional Knowledge 88 More recently the discussion paper National Aboriginal Products Branding for 2010 prepared for D I A N D by O ' N e i l Marketing & Consulting in March 2006 makes the following recommendations (among others): •  Rapid recognition o f a Branding process concurrently with the Host First Nations (i.e., the four First Nations in Vancouver) and the national First Nations, Aboriginal and Metis Nations. Meet with the organizations and gain approval. Host a national focus group to fine tune a process, and confirm what the "brand promise" is. Keep this time line short. The Brand ideally would be launched four years out from 2010 to be able to participate in pre-event marketing initiatives and create a strong brand presence.  •  A partnership agreement with the Host First Nations and V A N O C (Vancouver Olympic Committee) to establish the brand is needed to recognize protocol, as well as to identify partnerships for participation.  •  A non-political process that lays out clear criteria for participation i n the program so that acceptance for participation can be easily determined in as fair a system as possible; and in addition to the Aboriginal definition, that this system recognizes the consumer's definition o f "authentic" (National Aboriginal Products Branding for 2010, O ' N e i l Marketing & Consulting-2006).  The Igloo trademark in Canada was the first protective mark for T K in the world; however, it has virtually fallen into disuse. In the meantime protective marks in N e w Zealand and Australia, and protective law in the Philippines and the U . S . (discussed in the following chapter) have been developed with a high level o f support and approval by Indigenous peoples. There has been some more recent discussion in Canada about the possibility developing a more significant protective mark. Industry Canada also commissioned a discussion paper on Protective Marks for Indigenous products by consultant Phil B i r d in 2002. The calls for such a Certification Mark in Canada are coming from a variety o f sources, the most time constrained and high profile is the production o f a mark for the 2010 Olympic Games. Especially given the 2010 Vancouver Olympic Committee has already offended many Indigenous peoples with the Inukshuk logo. Whether a meaningful certification may be developed in Canada, it is certain that the idea has wide spread support;  Transformation o f Traditional Knowledge 89  the proposal for a 2010 mark has the potential to be one o f the lasting "legacies" o f the Olympic Games.  The Indigenous Artist's Research Project in Canada In the late 1980s and early 1990s, the Indigenous arts community in Canada was instrumental in bringing the issues o f cultural appropriation and repatriation to the forefront of the national consciousness. The mobilization o f Indigenous artists at the 1987 "Telling Our O w n Story" Conference in Vancouver, protests by Indigenous artists against The Spirit Sings exhibit at the Glenbow Museum and the National Gallery o f Canada in 1986-1987, and the lobbying effort o f Indigenous members i n the Writers Union o f Canada in 1988, all contributed to an increased awareness among progressive elements i n Canada. These efforts have led to increased recognition o f the importance o f T K in upholding the integrity o f Indigenous peoples. The C R A was formed in 2002 to represent the Intellectual Property interests o f artists in Canada at a national and international level, and, therefore also, has an interest in T K issues and Indigenous artists. There have been presentations on the subject o f T K each year at the annual meetings o f the C R A . The Indigenous Peoples Caucus (IPC) o f the C R A has maintained an effort to hold ongoing discussions with on T K related issues within the Indigenous artists community and government departments and agencies i n Canada, and lobby for T K rights at W I P O , C B D and other U N forums. The Intellectual Property Policy Directorate (IPPD) o f Industry Canada also has a domestic policy development work program on T K issues. The focus o f their work to date has been on identifying long-term objectives at the national level by gathering information from a variety o f sources, including from Indigenous communities and individuals at the grassroots level. The picture is not yet complete. I P P D ' s work is still at the fact-finding stage and further work is needed to obtain a  Transformation o f Traditional Knowledge 90  more representative view o f the diversity o f stakeholders and concerns surrounding the issues. The C R A approached representatives o f the I P P D in 2004 for funding assistance to conduct three regional symposia dealing with T K related issues, as well as a national conference coinciding with the C R A annual meetings in Montreal in June 2005. The entire project, including the results o f the two previous meetings held in Saskatchewan and Manitoba, was named the Indigenous Artist Research Project (IARP). Throughout the symposia conducted for the I A R P participants pointed out that T K raises serious challenges for the Intellectual Property system. Many argued that the current IPRs do not respond to the concerns o f T K holders. One overarching problem identified is that the I P R system is designed to eventually release all Intellectual Property into the Public Domain after time periods o f protection expire. Many participants insisted that Indigenous protocols dictate that certain aspects o f T K are not intended for external access i n any form, at any time. The I A R P also highlighted how these potential conflicts between the T K and IP systems have given rise to numerous discussions at the local, national level and international level. In each region artists and others indicated the need for support from the federal government for organization around these issues at the local level in order to allow them to better contribute to these discussions. Additional views provided by participants through the follow-up telephone interviews largely complement the findings outlined. The I A R P managed to bring together a wide range o f individuals, federal government departments and organizations interested in finding answers to the complex and sensitive issues related to T K , in a positive and productive manner. It is the hope that the information gathered w i l l be a useful contribution to current work on T K underway within federal government and  Transformation o f Traditional Knowledge 91 f'  Indigenous communities and that collaboration w i l l continue to take place i n the future ( I A R P Final Report-2004).  The National Gatherings on Indigenous Knowledge Traditions: National Gatherings on Indigenous Knowledge ( N G I K ) was the third i n a series o f national gatherings organized by the Department o f Canadian Heritage ( D C H ) with the goal o f continuing" engagement with Aboriginal communities across Canada on areas o f mutual interest." D C H proposes that 'the findings o f Traditions w i l l help to build and enhance policies, programs and services that are supportive o f Indigenous peoples i n Canada and are relevant to their needs." ( N G I K Draft Final Report-2006) The preamble to the Draft Report states that "Traditions acknowledges and celebrates the fact that an underlying strength o f Canada is founded on the rich heritage o f Indigenous societies and the extensive contributions they have made to our national identity. Dialogues with First Nations, Inuit and Metis identified the need for all Canadians to recognize these contributions and acknowledge the unique challenges faced by communities i n the three areas o f Indigenous knowledge targeted for discussion: languages and cultures; intellectual and cultural property; and artistic expression." The Gatherings provided a forum in which D C H came together with Indigenous communities and representatives from other government sectors to discuss a framework for the recognition, respect, protection and celebration o f Indigenous knowledge i n all the ways it is used and expressed. The N G I K also provided opportunities for delegates to meet others who share their perspectives and concerns. They allowed delegates to share information about best practices and support available from federal departments and agencies, and they encouraged open and relevant discussions o f key issues and brainstorming on opportunities and strategies for change.  Transformation o f Traditional Knowledge 92  During the months o f M a y and June 2005, national Gatherings on Indigenous knowledge were held in eight communities across Canada: Rankin Inlet, Edmonton, Penticton, Wanuskewin, Yellowknife, Wendake, Eskasoni and Six Nations. They brought together over 400 representatives o f Indigenous communities with D C H and other government representatives. Each Gathering took place over three days and involved approximately fifty invited delegates. Gatherings consisted o f small break-out circles and plenary discussions focused on the following themes: •  Indigenous Knowledge and Languages and Cultures  •  Indigenous Knowledge and Intellectual and Cultural Property  •  Indigenous Knowledge and Artistic Expression  Within each o f the three themes, delegates were asked to consider: what issues should be considered priorities and what were the main vulnerabilities; the possibilities for action; and the roles and responsibilities for addressing the issues in diverse communities. The process o f engagement used by the National Gatherings Secretariat is founded on key principles that have guided the D C H in coming together with federal departments, provincial and territorial governments, Aboriginal governments and leaders, and communities alike. According to the Draft Report, "these principles were not just for the national Gatherings, but w i l l continue to guide the Department o f Canadian Heritage in future processes o f engagement." A common theme heard throughout the Gatherings was that communities would like to see the creation of, and financial support for, Elders' Councils to advise both communities and government departments at various levels. Although each Gathering, and indeed each circle discussion, had its own unique conception o f Elders' Councils, the underlying message was that guidance and advice from Elders is essential because traditional laws and protocols  Transformation of Traditional Knowledge 93 govern virtually all aspects of community life, including finding solutions and strategies to address critical issues.The need to raise awareness about the urgency and importance of these critical issues was raised at each Gathering. Indeed, the report is a testament to the importance of promoting, protecting and valuing Indigenous knowledge, while acknowledging the contributions that First Nation, Inuit and Metis peoples have made and continue to make to Canadian society and culture. The National Perspective section of the Final Report has been divided into three equal parts to reflect the three themes related to Indigenous knowledge that were discussed in the Gatherings: languages and cultures; intellectual and cultural property; and artistic expression. In each part, the content of the discussions is presented by introducing issues and vulnerabilities, followed by recommendations for action and delineation of roles and responsibilities. The N G I K process was an example of a National government inviting Indigenous communities to take part in a process and express their views. D C H also established an Advisory Committee of Indigenous representatives to guide and provide advice on the process. It remains to be seen if the NGIK will have any significant impact of D C H and Canadian Government policy on TK. (At the time of this writing of this dissertation the N G I K Final Report is being held up in the Prime Minster's Office awaiting approval.) Summary  There have been a variety of Indigenous/National Government collaborations on T K issues: with various degrees of success and control by either of the two parties. It is clear that there have also been a variety of forces and circumstances leading to the initiatives. The conclusion could be drawn that in terms of producing tangible results to the satisfaction of Indigenous peoples the outcomes of the initiatives could be ranked in the order they were  Transformation o f Traditional Knowledge 94 discussed: 1) South Africa, 2) Australia, 3) N e w Zealand, 4) Canada. The Canadian experience has shown some movement and potential o f late after decades o f stagnation. To be sure Canada has the benefit o f learning from the Australian and N e w Zealand examples and the opportunity o f building on recent initiatives and the 2010 Olympics. Canada appears to be at a similar stage that Australia was at a decade ago in that, after about two decades o f Indigenous peoples raising T K issues, the state has slowly begun to acknowledge the problem. Perhaps the I A R P , the N G I K and the potential o f a 2010 protective mark could lead to o f the beginning o f a movement to act on T K issues more substantively in Canada. While Canada has the examples o f the South African, N e w Zealand and Australian experiences to draw from, Indigenous peoples in Canada also have the Australian test case models to consider as a means o f forcing the state to act. Indeed, some analysts believe that Indigenous peoples are in a unique position o f having the potential to advance M o r a l Rights recognition to the benefit o f all artists (Crean-2002). This chapter looked at national experiences that have produced policy, guidelines, protocols, and trade-marks to enforce standards, all o f which could be interpreted as forms o f non-binding protection, or what is referred to in the discourse "soft law." The following chapter w i l l examine countries that have gone beyond "soft law" and enacted specific binding legislation and laws to protect and regulate T K .  Transformation o f Traditional Knowledge 95  CHAPTER SEVEN: NATIONAL INITIATIVES National Models of Sui Generis Legislation/Laws This chapter w i l l briefly outline the ten national models o f Sui Generis protection o f T K listed below. These are the ten models that exist so far in the world as these ten countries have undertaken the initiative to introduce specific legislation and/or laws to protect and regulate T K within their borders. The ten models w i l l be outlined under the following categories (which are categories used by W I P O in analyzing on Sui Generis regimes, and commonly used by other U N bodies): Policy Objectives, Conditions o f Access to T K , Rights Holder, Registration Mechanisms, Sanctions and Enforcement, Access and Benefit-sharing, and Recognition o f Customary Laws. In cases where the models have no provisions for a category, the category has been left out o f the analysis. 1) African Union  African M o d e l Legislation for the Protection o f the Rights o f Local Communities, Farmers and Breeders, and for the Regulation o f Access to Biological Resources o f 2000;  2) Brazil  Provisional Measure N o . 2186-16 o f 2001 Regulating Access to the Genetic Heritage Protection o f and Access to Associated Traditional Knowledge;  3) China  The Patent L a w o f 2000 and the Regulations on the Protection o f Varieties o f Chinese Traditional Medicine;  4) Costa Rica  L a w N o . 7788 o f 1998 on Biodiversity;  5) India  Biological Diversity A c t i n 2002;  Transformation o f Traditional Knowledge 96  6) Peru  The Peruvian L a w N o . 27,811 o f 2002 Introducing a Protection Regime for the Collective Knowledge o f Indigenous Peoples Derived from Biological Resources;  7) Philippines  Indigenous Peoples Rights A c t o f 1997;  8) Portugal  Decree L a w N o . 118 o f 2002 Establishing a Legal Regime o f Registration, Conservation, Legal Custody and Transfer o f Plant Endogenous Material;  9) Thailand  A c t on Protection and Promotion o f Traditional Thai Medicinal Intelligence, B . E 2542;  10) United States  Indian Arts and Crafts A c t o f 1990 and other relevant measures.  Overview of National Models 1) African Union  African M o d e l Legislation for the Protection o f the Rights o f L o c a l Communities, Farmers and Breeders, and for the Regulation o f Access to Biological Resources o f 2000  The African Union introduced the "African M o d e l Legislation for the Protection o f the Rights o f L o c a l Communities, Farmers and Breeders, and for the Regulation o f Access to Biological Resources" in 2000 as guidelines for its fifty-three member states. The M o d e l legislation is to be followed by each member state respective o f the "National Competent Authority" ( N C A ) . Policy Objectives: The main objectives o f the African M o d e l Legislation for the Protection o f the Rights o f Local Communities, Farmers and Breeders, and for the Regulation o f Access to Biological Resources, are to ensure the conservation, evaluation and sustainable use o f the biological resources, and knowledge and technologies i n order to maintain and improve their diversity. The specific stated objectives o f the African M o d e l are:  Transformation o f Traditional Knowledge 97  •  to recognize, protect and support the inalienable rights o f local communities, including farming communities, over their . . . knowledge and technologies;  •  to recognize and protect the rights o f breeders;  •  to provide an appropriate system for access to community knowledge and technologies;  •  to promote mechanisms for fair and equitable sharing o f benefits arising from the use o f knowledge and technologies;  •  to ensure the effective participation o f concerned communities in deciding on the distribution o f benefits deriving from knowledge and technologies;  •  to encourage national and grassroots scientific and technological capacity;  •  to provide mechanisms for implementation and enforcement o f rights o f local communities and conditions o f access to biological resources, community knowledge and technologies. (Part I)  Scope of Subject Matter: The scope o f subject matter to which the legislation applies includes biological resources, their derivatives, "and community knowledge and technologies" (Art.2(l)(i-iii)). Conditions of Access to TK: In the application for access to the N C A the applicant shall provide a description o f the innovation, practice, knowledge or technology, associated with the biological resource and propose mechanisms for benefit-sharing (Art.4.(l)(xi) and 4(l)(x). L o c a l communities have the right to refuse access to their T K where such access w i l l be detrimental to the integrity o f their natural or cultural heritage (Art. 19). Registration Mechanisms: The Model Legislation establishes a National Information System which shall include "documentation o f information on Community Intellectual Rights, Farmers' Rights, . . . community innovations, practices, knowledge and technologies;" (Art.64 (1) and 65(1)). It further states that "[1] local communities may also establish databases o n . . . the knowledge and technologies o f those communities" (Art.64 (2)). Access to information in the National Information System and the local databases shall be regulated by a charter setting out the rights o f the owners o f the data (Art.64 (3)).  Transformation o f Traditional Knowledge 98  Sanctions and Enforcement: The State shall establish appropriate agencies with the power to ensure compliance with the provisions o f the Model L a w (Art. 67.2). Sanctions and penalties may include: i) written warning; ii) fines; iii) automatic cancellation/ revocation o f the permission for access; iv) confiscation o f collected specimens; v) permanent ban from access to community knowledge and biological resources. The violation committed shall be publicized and reported by the N C A to the secretariats o f relevant international agreements. When the collector conducts his/her operations outside o f national jurisdiction, any alleged violations by such a collector may be prosecuted through the cooperation o f the government under whose jurisdiction the collector operates. Finally, decisions on agreements regarding access to community knowledge may be appealed through appropriate administrative channels. Recourse to the courts shall be allowed after exhaustion o f all administrative remedies (Art. 68). Access and Benefit-sharing: The M o d e l Legislation says, "any access to T K shall be subject to the necessary PIC o f the N C A as well as concerned local communities (Art.3(l), 5(1) and 18). A l l access applications shall be submitted to the N C A and the N C A shall subject them to the P I C o f the concerned community (Art.3 (3) and 11(1)). A n y access granted without consultation with the local communities shall be deemed to be invalid and in violation o f the P I C requirement (Art.5 (3)). Under the Model Legislation, the granting o f access, including to T K , shall be carried out by the N C A in writing and carried out through a written agreement between the N C A and local community on the one hand and the applicant on the other (Art.7) Under the terms o f the Model Legislation, the Agreement shall contain a commitment by the collector not to apply for any IP rights over the biological resource and over the T K without the PIC of the providers (Art.8 (l)(v)).  Transformation o f Traditional Knowledge 99  Recognition of Customary Laws: Customary laws and protocols are referred to i n several provisions o f the L a w . It states that "This regime shall not affect the traditional exchange between indigenous peoples o f as they are enshrined and protected under the norms, practices and customary law found in, and recognised by, the concerned local and indigenous communities, whether such law is written or not" (Art. 17), and further that, " A n item o f T K shall be identified, interpreted and ascertained by the local communities concerned themselves under their customary practice and law, whether such law is written or not. (Art.23(2))." In Article 21(1) the M o d e l Legislation states that, L o c a l communities shall exercise their inalienable right to access, use, exchange or share their biological resources as regulated by their customary practices and laws. (African M o d e l Legislation for the Protection o f the Rights o f Local Communities, Farmers and Breeders, and for the Regulation o f Access to Biological Resources o f 2000)  2)  Brazil  Provisional Measure N o . 2186-16 o f 2001: Regulating Access to the Genetic Heritage, Protection o f and Access to Associated Traditional Knowledge  In 2001 Brazil enacted "Provisional Measure N o . 2186-16 Regulating Access to the Genetic Heritage, Protection o f and Access to Associated Traditional Knowledge." The Provisional Measure establishes a Management Council to administer it by establishing: (a) technical standards, (b) criteria for authorization o f access and dispatch; (c) directives for drafting the Contract for Use o f the Genetic Heritage and Benefit-Sharing; (d) criteria for the creation o f a database for recording information on associated T K . Policy Objectives: The stated objectives o f the Provisional Measure are to legislate: 1. access to components o f the genetic heritage 2. access to traditional knowledge relating to the genetic heritage;  Transformation o f Traditional Knowledge 100  3. the fair and equitable sharing o f the benefits deriving from exploitation o f associated traditional knowledge; 4.  access to and transfer o f technology for the conservation and use o f biological diversity. Scope of Subject Matter: The L a w is intended to cover "traditional knowledge o f  indigenous and local communities relating to the genetic heritage" which it defines as "information or individual or collective practices o f an indigenous or local community having real or potential value and associated with the genetic heritage" (Art.7(II). Conditions of Access to T K : Access to "associated traditional knowledge" within the Brazilian Measure is defined as the "acquisition o f information pertaining to knowledge or individual or collective practices, associated with the genetic heritage, o f an indigenous or local community for purposes o f scientific research, technological development or biological prospection, with a view to its application in industry or elsewhere" (Art.7 (V)). The Management Council can deliberate on "authorization o f access to associated T K , subject to the prior consent o f the owner" (Art. 1 l(IV)(b)). Under Article 16, access to associated traditional knowledge, shall be had by collection o f information respectively, and authorization shall only be given to a national research institution i n the biological and related fields by prior authorization. Access to T K associated with the national heritage shall be had by collection o f information and authorization shall be given to a national institution that research i n the biological or related fields by prior authorization (Art. 16). Indigenous or local communities are also guaranteed the rights granted under Article 9 on the condition that they created, developed, held or preserved the T K .  Transformation of Traditional Knowledge 101 Scope of Rights: The Provisional Measure protects T K associated to the genetic heritage "against illicit use and exploitation and other actions that are harmful or have not been authorized" by the Management Council or an accredited institution (Art. 8) In turn, communities that create, develop, hold or preserve T K associated to the genetic heritage are guaranteed the right: 1. "to have the origin of the access to T K mentioned in all publications, uses, exploitation and disclosures"; 2. "to prevent unauthorized third parties from: (a) using or carrying out tests, research or investigations relating to associated T K ; (b) disclosing, broadcasting or re-broadcasting data or information that incorporate or constitute associated T K . " 3. to "derive profit from economic exploitation by third parties of associated T K the rights in which are owned by the community" (Art.9). However, the Measure states in Article 8 that T K protection "shall not affect, prejudice, or limit rights pertaining to intellectual property" and that protection shall not impede "preservation, use and development of T K . " Article 4 also states that "customary uses by communities should be preserved in all cases." Rights Holder: The Provisional Measure refers to the rights holder as "Indigenous Cultural Communities and Indigenous Peoples" (ICCs/IPs) which it defines in Article 7 as "a group of generations and through its own customs and preserves its social and economic institutions." Any associated traditional knowledge may be owned by the community, even if only one single member of the community holds that knowledge (Art.9, Sole Paragraph). Acquisition of Rights: The Measure does not specify procedures or formalities for the acquisition of rights. Article 1 l(II)(d) mentions the organization of a database containing  Transformation o f Traditional Knowledge 102  information on associated T K by the Management Council, but there is no requirement for T K to be included in the database in order to be protected. Registration Mechanisms and Procedures: Under Article 11 o f the Provisional Measure, the Management Council is responsible for establishing criteria for the creation o f a database for recording information on associated traditional knowledge. Article 8 also states that T K may also be subject to a cadastral record, "as directed by the Management Council or provided in specific legislation." Access and Benefit-sharing: In Art. 16 the Provisional Measure adheres to P I C stating that access to T K shall be granted with the prior consent of: (a) the indigenous community involved; (b) the competent body where access occurs in a protected area; (c) the owner where access occurs on private land. Article 17 o f the Measure stipulates that benefits arising from economic exploitation of a product or process developed from associated T K , shall be shared in a fair and equitable way between the contracting parties. The institution receiving associated T K shall facilitate transfer o f technology for the preservation and use o f that T K for the national institution responsible for access and dispatch o f the T K (Art.21).  3) China  The Patent L a w o f 2000 and the Regulations on the Protection o f Varieties o f Chinese Traditional Medicine;  "The Patent L a w o f 2000" and "the Regulations on the Protection o f Varieties o f Chinese Traditional Medicine" are two separate legislations administered by the State Council's Patent Administration Department which is responsible for all patent related work throughout the country. For both legislations, which are intended to work in tandem, the  Transformation o f Traditional Knowledge 103  Patent Administration Department is responsible for: (a) technical standards, (b) criteria for authorization o f access. Policy Objectives: China's stated objectives for the Patent L a w o f 2000 are: •  T o accelerate the inventor's enthusiasm, and stimulate technology innovation;  •  To provide an important and effective means o f traditional medicine intellectual property protection.  The stated objectives for the Regulations on the Protection o f Varieties o f Chinese Traditional Medicine are: •  T o improve product quality;  •  To normalize the market;  •  To wash out low quality medicine.  Scope of Subject Matter: The two legislations govern "product, method, and use o f medicines" which it defines as follows: Product: a new pharmaceutical composition and preparation thereof, effective ingredient extracted/separated from traditional medicine, effective parts and preparation thereof, new preparation o f changing the administration route, etc.; Method: preparation method o f the products mentioned above, new or improved technology o f production, etc.; Use: new indication o f medicine, first medical use, the second use o f the known medicine, etc. Chinese Traditional Medicine: Conditions of Protection of TK: In accordance with the legislations i n order to qualify for protection uses o f T K must display: •  novelty: examining according to the principle o f complete identity o f technical solution;  •  inventiveness: prominent substantive features and notable progress as compared with the existing technology;  Transformation o f Traditional Knowledge 104  •  practical applicability: product having medical effect; methods can be carried out or exploited industrially; use can be realized industrially.  Rights Holder: "Manufacturing enterprises" only can be a rights holder under the two legislations. Acquisition of Rights: Rights are acquired through the Patent L a w o f 2000 under Chapter III by filing an application for patent to the State Council's Patent Administration Department. Expiration and Loss of Rights: Under the Patent L a w o f 2000 the term o f protection is limited to 20 years, counted from the date o f filing the patent application. Protection can also be renewed after the 20 year time period. Registration Mechanisms: Under Article 39 o f the Patent L a w o f 2000 The State Council must register the certificate o f patent for invention and announce it. (Provisional Measure N o . 2186-16 o f 2001 Regulating Access to the Genetic Heritage, Protection o f and Access to Associated Traditional Knowledge)  4) Costa Rica  L a w N o . 7788 o f 1998 on Biodiversity  Article 13 o f Costa Rica's " L a w N o . 7788 o f 1998 on Biodiversity" establishes the administrative organization in order to fulfill the objectives o f the law: a) the National Commission for the Management o f Biodiversity ( N C M B ) ; b) a National System o f Conservation Areas. Under Article 14 o f L a w N o . 7788 the N C M B has the function to formulate and co-ordinate policies for access to biodiversity and associated knowledge. Under Article 14, the N C M B Technical Office has the function to negotiate and approve access applications, and to co-ordinate anything related to access with the private sector, indigenous peoples and peasant communities. Policy Objectives: The stated objectives o f L a w N o . 7788 are:  Transformation o f Traditional Knowledge 105  •  to regulate access and in so doing make possible the equitable distribution o f the environmental, economic and social benefits to all sectors o f society, paying special attention to local communities and indigenous peoples.  •  to recognize and provide compensation for the knowledge, practices and innovations o f indigenous peoples and local communities i n the conservation and sustainable use ecological o f the components o f biodiversity.  •  to recognize the rights deriving from the contribution o f scientific knowledge to the conservation and sustainable ecological use o f the components o f biodiversity ( A r t l O ( l ) , 10(6), 10(7)).  Scope of Subject Matter: T w o scopes o f T K subject matter are defined i n the L a w : first, the scope o f T K to which the L a w regulates access, and, second, the scope o f T K for which the L a w provides exclusive rights (industrial property rights and Sui Generis community intellectual rights). Conditions of Access to T K : The L a w includes T K as an intangible component within i n the term "biodiversity." Article 7 defines that "intangible components, which are: the knowledge, innovations and practices, be they traditional, individual or collective, with real or potential value associated with biochemical or genetic resources, whether these are protected or not by systems o f intellectual property or by Sui Generis registration systems." Conditions o f access are included i n the regulation o f access to biodiversity: "Access" is defined as " A c t i o n to obtain samples o f components o f Biodiversity . . . or to obtain associated knowledge" (Art.7.1) The law recognizes the right o f local communities and indigenous peoples to oppose access to their resources and associated knowledge (Art.66). The access policies proposed by the National Commission on the Management o f Biodiversity constitute the general rules for access and for the protection o f intellectual rights concerning biodiversity. Under Article 83 o f the L a w the requirements o f Sui Generis community intellectual rights shall be determined by a participatory process with indigenous  Transformation o f Traditional Knowledge 106  and small farmer communities to be defined by the National Commission for the Management o f Biodiversity. Scope of Rights/Rights Holder: The scope o f Sui Generis community intellectual rights shall be determined by a participatory process with indigenous and small farmer communities to be defined by the National Commission for the Management o f Biodiversity in Article 83 which says, "the Right Holder Who w i l l be the title holder o f Sui Generis community intellectual rights shall be determined by a participatory process with indigenous and small farmer communities to be defined by the National Commission for the Management o f Biodiversity." Registration Mechanisms: Under Article 84 o f the L a w , an inventory w i l l be made of specific Sui Generis community intellectual rights that communities ask to be protected. The recognition o f these rights in the register is voluntary and free. The registration should be done unofficially and at the demand o f the interested parties, without being subject to any formality. A register o f rights o f access, including to T K , w i l l be organized by the Technical Office o f the Commission. The registered information w i l l be publicly available, except for trade secrets (Art.67 and 7.1). Access and Benefit-sharing: The basic requirements for access under the L a w include: (1) P I C o f the representatives o f the place where the access w i l l occur; (2) Approval of PIC by the Technical Office o f the Commission; (3) the terms o f technology transfer and distribution o f benefits, where there are any, and the type o f protection o f T K (Art.63 (1)(3)). The Technical Office establishes the obligation o f the interested party to deposit up to 10% o f the research budget and up to 50% o f the bonuses which it collects, i n favour o f the National System o f Conservation Areas, the indigenous territory or the private owner providing access. (Costa R i c a L a w N o . 7788 o f 1998 on Biodiversity)  Transformation o f Traditional Knowledge 107  5) India  Biological Diversity A c t o f 2002  Article 8(1) o f India's Biological Diversity A c t o f 2002 establishes the National Biodiversity Authority ( N B A ) . The head office o f the N B A is in Chennai and the N B A may establish officers at other places in India. The A c t also regulates the Conditions o f Service o f the N B A Chairperson and members, the Meetings o f the N B A , and the Committees o f the N B A . The N B A issues guidelines for access to biological resources and for fair and equitable benefit sharing. Chapter V I o f the A c t regulates the establishment o f State Biodiversity Board by the State Government (Section 22); the functions o f State Biodiversity Board (Section 23) and the Power o f State Biodiversity Board to restrict certain activities (Section 24). Policy Objectives: The objectives o f the A c t are to provide for conservation o f biological diversity, sustainable use o f its components and fair and equitable sharing o f the benefits arising out o f the use o f biological resources and knowledge Conditions of Access to T K : Article 3 o f the A c t states "the obtaining o f any knowledge associated to biological resources occurring in India is subject to previous approval o f the N B A for certain persons for purposes o f research, commercial utilization, bio-survey or bio-utilization" and, further, that "any person who intends to be obtaining o f any knowledge associated to biological resources occurring in India is subject to previous approval o f the N B A for certain persons for purposes o f research, commercial utilization, bio-survey or bio-utilization ." Scope of Rights: Article 36 o f the A c t maintains that the scope o f rights granted by measures for protection, including Sui Generis systems, shall be "as recommended by the National Biodiversity Authority..."  Transformation o f Traditional Knowledge 108  Rights Holder: The A c t does not define right holders, but defines in Article 2 the term "benefit claimers" to include "creators and holders o f knowledge and information relating to the use o f such biological resources, innovations and practices associated with such use and application." Acquisition of Rights: The A c t provides that measures to protect T K "may include registration o f the knowledge at the local, state and national levels," but does not expressly define registration as the required procedure for the acquisition o f the legal protection foreseen i n the Act.  <•  Sanctions and Enforcement: The A c t provides that: (1) sanctions may extend to ten lakh rupees and where the damage caused exceeds ten lakh rupees such fine may commensurate with the damage caused, or with both; (2) whoever contravenes the provisions on Section 7 [Prior Intimation to State Biodiversity Board] or any order made under Section 24(2) [Power o f State Biodiversity Board to Restrict Certain Activities] shall be punishable with imprisonment for a term which may extend to three years, or with fine which may extend to five lakh rupees, or with both. Section 56 regulates the penalty for contravention o f directions or orders o f Central government, State government, National Biodiversity Authority and State Biodiversity Boards. Registration Mechanisms: Article 36 o f the A c t provides that measures to protect T K "may include registration o f the knowledge at the local, State and national levels." Article 41 further provides that "every local body shall constitute a Biodiversity Management Committee for conservation and documentation o f biological diversity including . . . the chronicling o f knowledge relating to biological diversity." Access and Benefit-sharing: With regard to P I C , certain persons shall not obtain any knowledge associated to biological resources occurring in India for research or for  Transformation o f Traditional Knowledge 109  commercial utilization or for bio-survey and bio-utilization without previous approval o f the N B A under Article 3(1) o f the Act. Where any amount o f money is ordered by way o f benefit sharing, the N B A may direct the amount to be deposited in the National Biodiversity Fund. Provided that where knowledge was a result o f access from specific individual or group, the N B A may direct that the amount shall be paid directly to such individual or group o f individuals. (Art.21(3)). (India Biological Diversity A c t o f 2002)  6) Peru  L a w N o . 27,811 o f 2002 Introducing a Protection Regime for the Collective Knowledge o f Indigenous Peoples Derived from Biological Resources Peru's " L a w N o . 27,811 o f 2002" gives Institute Nacional de Defensa de la  Competencia y de la Protection de la Propiedad Intelectual ( I N D E C O P I ) responsibility to administer the L a w . P o l i c y Objectives: The stated objectives o f the L a w are: (a) T o promote respect for and the protection, preservation, wider application and development o f the collective knowledge o f indigenous peoples; (b) T o promote the fair and equitable distribution o f the benefits derived from the use o f that collective knowledge; (c) To promote the use o f the knowledge for the benefit o f the indigenous peoples and mankind i n general; (d) To ensure that the use o f the knowledge takes place with the prior informed consent o f the indigenous peoples; (e) To promote the strengthening and development o f the potential o f the indigenous peoples and o f the machinery traditionally used by them to share and distribute collectively generated benefits under the terms o f the regime established by the law;  Transformation o f Traditional Knowledge 110 (f) T o avoid situations where patents are granted for inventions made or developed on the basis o f collective knowledge o f the indigenous peoples o f Peru without any account being taken of that knowledge as prior art in the examination o f the novelty and inventiveness o f the said inventions. Scope of Subject Matter: The Peruvian L a w Article 3 affords protection to "collective knowledge o f Indigenous peoples that is connected with biological resources." Protection is conferred to collective knowledge that is not in the public domain. The term "collective knowledge" is defined as "the accumulated, transgenerational knowledge evolved by indigenous peoples and communities concerning the properties, uses and characteristics o f biological diversity" (Art.2(b)). Conditions of Access to TK: The L a w establishes different conditions o f access to T K , depending on the purpose o f access: 1. Access for the purposes o f commercial or industrial application, shall be subject to the signing o f a license agreement in which terms are provided that ensure due reward for the said access and in which the equitable distribution o f the benefits deriving there from is guaranteed (Art.7). A license contract for the use o f collective knowledge is defined as "an express agreement concluded between the organization o f indigenous peoples possessing collective knowledge and a third party that incorporates terms and conditions for the use of the said collective knowledge" (Art.2(d)). For details on licensing contracts for collective knowledge see 'Mutually Agreed Terms' in the Section on 'Access and Benefit-sharing Elements' below. 2. A s a general principle, those interested i n having access to collective knowledge for the purposes o f scientific, commercial and industrial application shall apply for the  Transformation o f Traditional Knowledge 111  prior informed consent o f the representative organizations o f the indigenous peoples possessing collective knowledge (Art.6) 3.  Traditional knowledge developed by indigenous peoples: "Indigenous peoples" means "aboriginal peoples holding rights that existed prior to the formation o f the Peruvian State, maintaining a culture o f their own, occupying a specific territorial area and recognizing themselves as such" (Art.2(a)).  4.  Traditional knowledge not in the public domain: protection is only conferred to knowledge which is not in the public domain (Art.42). For the purposes o f the law, collective knowledge is understood to be in the public domain when it has been made accessible to persons other than indigenous peoples by mass communication media such as a publication or, when the uses or characteristics o f a biological resource are concerned, where it has become extensively know outside the indigenous peoples (Art. 13) Rights Holder: The Peruvian L a w identifies in Article 1 "indigenous peoples and  communities" as the persons whose rights and power to dispose o f their collective knowledge are recognized. Sanctions and Enforcement: The Peruvian L a w stipulates that Indigenous peoples may bring infringement actions against whoever violates their rights under Article 42. Under Article 45, Indigenous peoples may also bring actions claiming ownership and indemnification against the third party that uses their collective knowledge in a manner contrary to the provisions o f the regime. Registration Mechanisms: The L a w establishes three types o f registers, which states the following:  Transformation o f Traditional Knowledge 112  (a) to preserve and safeguard the collective knowledge o f indigenous peoples and their rights therein; to provide I N D E C O P I with such information as enables it to defend the interests o f indigenous peoples where their collective knowledge is concerned (Art. 16). (b) The collective knowledge o f indigenous peoples may be entered in three types o f register (Art. 15) Access a n d Benefit-sharing: Regarding PIC, the L a w states in Article 6 that those interested in having access to collective knowledge for the purposes o f scientific, commercial and industrial application shall apply for the prior informed consent o f the representative organizations o f the indigenous peoples possessing collective knowledge. The organization o f the indigenous peoples shall inform the greatest possible number o f indigenous peoples possessing the knowledge that it is engaging in negotiations and shall take due account o f their interests and concerns, i n particular those connected with their spiritual values or religious beliefs. The information supplied shall be confined to the biological resource to which the collective knowledge under negotiation relates in order to safeguard the other party's interest in keeping the details o f the negotiation secret, or a renewable period between one and three years (Art.26). The L a w further stipulates that a statement o f the compensation that the indigenous peoples w i l l receive for the use o f their collective knowledge, which shall include: (i) an initial monetary payment or an equivalent for its sustainable development, and (ii) a percentage o f not less than 5% o f the value, before taxes, o f the gross sales resulting o f the marketing o f the products developed from the said collective knowledge. Indigenous peoples may obtain benefits from their collective knowledge i n two ways: •  Directly: through payment in two stages pursuant to license contracts;  Transformation o f Traditional Knowledge 113  •  Indirectly through the Fund for the Development o f Indigenous Peoples:  The purpose o f the Fund is to contribute to the development o f indigenous peoples through the financing o f projects and other activities (Art.37). The Fund was created to allow a l l indigenous peoples - participation in a license contract - to enjoy the benefits derived from the use o f their collective knowledge. Article 8 states that a percentage o f no less than 10% o f the value o f the gross sales resulting o f the marketing o f the products developed from a collective knowledge shall be set aside for the Fund. I f the collective knowledge has passed into the public domain in the last 20 years, an unspecified percentage o f the value o f the gross sales resulting o f the marketing of the products developed from this knowledge shall be set aside for the Fund . Recognition of Customary Laws:  Customary laws and protocols are referred to i n  several provisions o f the L a w as follows: •  This regime shall not affect the traditional exchange between indigenous peoples of the collective knowledge (Art.4).  •  The rights granted under the regime shall be independent o f those that may come into being within the indigenous peoples, who may use their traditional systems o f distribution o f benefits (Art. 10).  •  Indigenous peoples shall be represented by their representative organizations, due regard being had to the traditional forms o f organization o f the indigenous peoples (Art. 14).  •  Indigenous peoples may organize local registers in accordance with their practices and customs (Art.24).  •  To the extent possible, the Administrative Committee o f the Fund shall use the mechanisms traditionally used - by indigenous peoples - for sharing and distributing collectively generated benefits (Art. 3 9).  •  T o settle the disputes that may arise between indigenous peoples i n connection with the implementation o f this regime... indigenous peoples may use their customary law and their traditional forms o f dispute settlement (Art.46). (Peru L a w N o . 27,811 o f 2002 Introducing a Protection Regime for the Collective Knowledge o f Indigenous Peoples Derived from Biological Resources)  Transformation o f Traditional Knowledge 114  7) Philippines  Indigenous Peoples Rights A c t o f 1997  The National Commission on Indigenous Peoples ( N O P ) is the primary government agency, located under the Office o f the President, which is responsible for the formulation and implementation o f policies, plans and programs to recognize, protect and promote the rights o f Indigenous Cultural Communities and Indigenous Peoples (ICCs/IPs ) i n the Philippines. Policy Objectives: The objectives o f the Indigenous Peoples Rights A c t o f 1997 are: •  T o recognize, protect, and promote the rights o f Indigenous Cultural Communities and Indigenous Peoples;  •  To provide for a system o f community intellectual rights protection i n respect o f the innovative contribution o f both local and indigenous cultural communities i n the matter o f development and conservation o f genetic resources and biological diversities.  Scope of Subject Matter: The subject matter which ICCs/IPs have the right to control, develop and protect under Section 34 o f the A c t includes "their sciences, technologies and cultural manifestations, including human and other genetic resources, seeds, including derivatives o f these resources, traditional medicines and health practices, vital medicinal plants, animals and minerals, indigenous knowledge systems and practices, knowledge o f the properties o f fauna and flora, oral traditions, literature, designs, and visual and performing arts." The subject matter that is to be protected by the State under Section 32 includes "the past, present and future manifestations o f their [ICCs'/IPs'] cultures." Conditions of Access to T K : In the A c t access to Indigenous knowledge related to the conservation, utilization and enhancement o f biological and genetic resources shall be allowed within ancestral lands and domains o f the ICCs/IPs only with a free and prior informed consent o f such communities, obtained in accordance with customary laws o f the concerned community under Section 32; which states, "The State s h a l l . . . protect... the right  Transformation o f Traditional Knowledge 115  to the restitution o f cultural, intellectual, religious, and spiritual property taken without their free and prior informed consent or in violation o f their laws, traditions and customs." Scope of Rights: The scope o f rights made available to ICCs/IPs in the A c t includes: •  the right to practice and revitalize their own cultural traditions and customs (Section 32);  •  the right to the restitution o f cultural, intellectual religious, and spiritual property taken without their free and prior informed consent or in violation o f their laws, traditions and customs (Section 32).  •  the right to special measures to control, develop and protect their sciences, technologies and cultural manifestations (Section 34).  Rights Holder: Indigenous Cultural Communities and Indigenous Peoples under Section 3(h) o f the A c t are defined as "people or homogenous societies identified by selfascription and ascription by others, who have continuously lived as organized community on communally bounded and defined territory, and who have, under claims o f ownership since time immemorial, occupied, possessed and utilized such territories, sharing common bonds of language, customs, traditions and other distinctive cultural traits, or who have... became historically differentiated from the majority o f Filipinos." Section 5 declares the community ownership o f traditional resource rights. Sanctions and Enforcement: Section 65 o f the A c t states when disputes involve ICCs/IPs, "customary laws and practices shall be used to resolve the dispute." Additionally, Section 66 states "The N C I P , through its regional offices, shall have jurisdiction over all claims and disputes involving rights o f ICCs/IPs: Provided, however, that no such dispute shall be brought to the N C I P unless the parties have exhausted all remedies provided under their customary laws. For this purpose, a certification shall be issued by the Council o f Elders/Leaders who participated i n the attempt to settle the dispute that the same has not been resolved, which certification shall be a condition precedent to the filing o f a petition with the  Transformation o f Traditional Knowledge 116  N O P . " Furthermore, Chapter X I o f the I P R A declares in Section 72 the Punishable Acts and Applicable Penalties and in Section 73, Persons Subject to Punishment. Access and Benefit-sharing: In Section 35 the A c t outlines access to Indigenous knowledge related to biological resources, within ancestral lands and domains is subject to P I C o f ICCs/IPs. P I C which is defined further in Section 3(g) as "the consensus o f all members o f the ICCs/IPs to be determined in accordance with their respective customary laws and practices, free from any external manipulation, interference coercion, and obtained after fully disclosing the intent and scope o f the activity, i n a language and process understandable to the community." Recognition of Customary Laws: Section 2(b) o f the A c t reads, "The State . . . shall recognize the applicability o f customary laws governing property rights or relations i n determining the ownership and extent o f ancestral domain. The term "customary l a w " is defined as "a body o f written and/or unwritten rules, usages, customs and practices traditionally and continually recognized, accepted and observed by respective ICCs/IPs" (Section 3(f)). Section 15 o f the A c t states, "ICCs/IPs shall have the right to use their own commonly accepted justice systems, conflict resolution institutions, peace building processes or mechanisms and other customary laws and practices within their respective communities and as may be compatible with the national legal system and with internationally recognized human rights." The provision on application o f laws states that "Customary laws, traditions and practices o f the ICCs/IPs o f the land where the conflict arises shall be applied first with respect to property rights, claims and ownerships, hereditary succession and settlement o f land disputes. A n y doubt or ambiguity in the application and interpretation o f laws shall be resolved i n favor o f the ICCs/IPs" (Section 63). (Philippines Indigenous Peoples Rights A c t o f 1997)  Transformation o f Traditional Knowledge 117  8) Portugal  Decree L a w N o . 118 o f 2002 Establishing a Legal Regime o f Registration, Conservation, Legal Custody and Transfer o f Plant Endogenous Material.  Portugal's Decree L a w N o . l 18 o f 2002 includes the Register o f Plant Genetic Resources ( R R G V ) is created in the General Ministry o f Agriculture, Fisheries and Rural. Other institutions from the Ministry o f Environment, Regional Agricultural Services and Municipal Chambers also have partial responsibility for administration. Policy Objectives: The stated objectives o f the L a w outlined i n the Preamble are: •  To recognize, preserve and maintain the knowledge, innovations and practices o f small farmers and local communities embodying traditional lifestyles;  •  T o stimulate and contribute to their conservation for coming generations as a part o f the national heritage and the heritage o f mankind;  •  To promote the conservation, legal safeguarding and transfer o f autochthonous plant material o f current or with potential interest to agrarian, agroforest and landscape varieties and spontaneously occurring material.  Scope of Subject Matter: Traditional Knowledge is defined by the L a w i n Art.3(l) as comprising " a l l intangible elements associated with the commercial or industrial utilization o f local varieties and other autochthonous material developed i n a non-systematic manner by local populations, either collectively or individually, which form part o f the cultural and spiritual traditions o f those populations." That includes, but is not limited to, knowledge o f methods, processes, products and designations with applications in agriculture, food and industrial activities in general, including traditional crafts, commerce and services, informally associated with the use and preservation o f local T K , which is defined i n Article 3(1) as comprising " a l l intangible elements associated with the commercial or industrial utilization o f local varieties and other autochthonous material developed in a non-systematic  Transformation o f Traditional Knowledge 118  manner by local populations, either collectively or individually, which form part o f the cultural and spiritual traditions o f those populations." Conditions of Access to T K : The provisions on Access to and Allocation o f Benefits applying to T K are outlined in Article 3(7). Accordingly, access to traditional knowledge for purposes o f study, research, improvement or biotechnological applications shall be subject to prior authorization by The Ministry o f Agriculture ( C o T e R G A P A ) , the owner o f the registration having been heard. (Art.7(l)). Access requires the fair allocation o f the benefits resulting from such use, by prior agreement with the owner o f the registration (Art.7(4)). Conditions of Protection of T K : Subject to different conditions, the Decree grants two levels o f protection. 1. A l l T K as defined in A r t . 3 ( l ) shall be protected against reproduction or commercial or industrial use, subject to the following conditions: •  the T K shall be identified, described and registered in the Register o f P G R ;  •  the description shall be so phrased that third parties may reproduce or utilize the T K . (Art.3(2)).  2. T K may be afforded certain additional protection, subject to fulfilling either o f the following conditions: •  the T K has not been used in industrial activities, or  •  the T K is not publicly known outside the population or local community in which it originated (Art.3(4)).  Scope of Rights: The L a w also grants two scopes o f rights for different types o f registered T K : •  Owners o f registered T K which has not been industrially used or is not publicly known outside the originating local community shall have the right to: protect the T K "against reproduction or commercial or industrial use" (Art.3(2)).  Transformation o f Traditional Knowledge 119  •  Art. 3(3) confers on owners o f T K the right to choose to keep it confidential, "with the protection conferred by registration being limited to cases in which it is unfairly acquired by third parties" (Art.3(3)).  Rights Holder: Under Article 9 o f the L a w the owner o f the rights can be any entity, whether public or private, Portuguese or from another country, represents the interests o f the geographical area i n which the local variety is most widely found or where the spontaneously occurring autochthonous material displays the greatest interest for genetic variability. In the case o f T K the owner must represent the interests o f the region from where such knowledge is originated. The Preamble specifies that applicants for the legal registration o f local varieties and spontaneously occurring "autochtonous" material "may be public or private bodies o f any kind, such as self-supporting businesses, farmers' associations, regional development associations or individuals." Sanctions and Enforcement: The use o f registered plant material, plants or parts thereof, i n a manner contrary to the rights conferred to the owner o f the register, and specified i n the law, and in the regulations under this Decree, as well as the infringement o f the provisions o f this legislation on traditional knowledge, constitute violations punishable with a fine o f between €100 and €2,500. Negligence is punishable. In the event o f responsibility for the violation resting with a corporate entity, the maximum amount o f fines shall be €30,000 (Art. 13). Registration Mechanisms: The State Council is responsible under the A c t to register the certificate o f patent for invention and announce it. The L a w establishes the Register o f Plant Genetic Resources ( R R G V ) and the National Directory o f Registrations o f Plant Genetic Resources in Article 4 to carry out registration which is a condition for the acquisition o f rights.  Transformation o f Traditional Knowledge 120 Access and Benefit-sharing: Article 4 requires that the registration o f the material confers on the owner thereof the right to a share in the benefits derived from its use. Access to T K for purposes o f study, research, improvement or biotechnological applications shall be subject to prior authorization by C o T e R G A P A . Access as defined in Article 7 requires the fair allocation o f the benefits resulting from such use, by prior agreement with the owner o f the registration. The registration o f the material confers on the owner thereof the right to a share o f the benefits derived from its use i n Article 4. (Portugal Decree L a w N o . 118 o f 2002 Establishing a Legal Regime o f Registration, Conservation, Legal Custody and Transfer o f Plant Endogenous Material)  9) Thailand  A c t on Protection and Promotion o f Traditional Thai Medicinal Intelligence, B . E 2542  The " A c t on Protection and Promotion o f Traditional Thai Medicinal Intelligence" establishes the Committee on Protection and Promotion o f Traditional Thai Medicinal Intelligence. The Director o f the Institute for Traditional Thai Medicine is a member and secretary o f the Committee under Section 5. The A c t also establishes the Institute for Traditional Thai Medicine under the Ministry o f Public Health, having the authority to carry out duties concerned with protection and promotion o f intelligence on traditional Thai medicine and herbs. The Institute is also responsible for the administrative and technical work o f the Committee (Section 12). Scope of Subject Matter: Traditional Knowledge is defined in Article 3 as comprising " a l l intangible elements associated with the commercial or industrial utilization o f local varieties and other autochthonous material developed in a non-systematic manner by  Transformation o f Traditional Knowledge 121  local populations, either collectively or individually, which form part o f the cultural and spiritual traditions o f those populations." In general, "traditional Thai medicinal intelligence" means "the basic knowledge and capability concerned with traditional Thai medicine." "Traditional Thai medicine" is defined as "the medicinal procedures concerned with examination, diagnosis, therapy, treatment or prevention of, or promotion and rehabilitation o f the health o f humans or animals, obstetrics, traditional Thai massage, and also includes the production o f traditional Thai drugs and the invention o f medical devices, on the basis o f knowledge or text that has been passed on from generation to generation" (Section 3). According to Section 16, "there shall be three types o f traditional Thai medicinal intellectual property rights as follows: (1) the national formula of traditional Thai drug or the national text on traditional Thai Medicine; (2) the general formula o f traditional Thai drugs or general traditional Thai medicine document; and (3) the personal formula o f traditional Thai drugs or personal text on traditional Thai Medicine." Conditions of Protection of T K : The Thai A c t does not include express provisions on conditions o f protection, but the definitions in Section 3 contain certain conditions for traditional Thai medicine to be included in the scope o f the A c t . For example, the definition o f the term "traditional Thai medicine" contains the qualification that the medicinal procedures, massage, production o f traditional drugs or the invention o f medical devices has to rest "on the basis o f knowledge or text that has been passed on from generation to generation.''' (Section 3) The definition o f "text on traditional Thai medicine" states that the technical knowledge must, as a condition o f inclusion under the definition, have been "passed on from generation to generation."  Transformation o f Traditional Knowledge 122  Scope of Rights: Section 34 o f the A c t confers the rights holder "the sole ownership on the production o f the drug and the sole right over the research, distribution, improvement or development o f formulas on traditional Thai drugs or intellectual property rights o f traditional Thai medicine under the registered text on traditional Thai medicine." However, these rights are limited and do not apply to the following: (1) any act that is o f benefit for studies, findings, tests or research according to the regulation specified by the Minister; or (2) preparation o f specific drugs according to prescription o f holders o f registration certificate on; or (3) production o f drugs for household use or production o f drugs by state hospitals or government or state agencies, for use in state hospitals, or the use o f text on traditional Thai medicine for benefits i n treatment o f patients i n state hospitals, provided that it should be i n accordance with the Rules issued by the Minister. Rights Holder: Section 3 defines the term "right holder" as "those who have registered their intellectual property rights intelligence under this A c t . " Right holders are national individuals and also, according to Section 43 o f the L a w , persons with the nationality o f other nations who agree to permit persons with Thai nationality to have the protection o f intellectual property rights protection on traditional Thai medicine. Section 35 states, "The intellectual property right on traditional Thai medicine under this section shall not be transferred to others, except for the case in which it is passed on by succession." Right holders are national individuals and also, according to Section 43 o f the L a w , persons with the nationality o f other nations who agree to permit persons with Thai nationality to have the protection o f intellectual property rights protection on traditional Thai medicine. Sanctions and Enforcement: The concerned party or the public prosecutor may file complaints with the court to revoke registration over IPRs on traditional Thai medicine that had been registered unfairly or contrary to Section 21 or Section 22 o f the A c t . In case the  Transformation o f Traditional Knowledge 123  person permitted with the I P R on traditional Thai medicine exercise their rights against public order or good morals or violate or do not comply with the conditions specified in the Ministerial Regulation issued under Section 36.2 or exercise their rights which may cause serious damage to an IPRs on traditional Thai medicine that has been registered, the registrar has the power to revoke the permission to the IPRs on the traditional Thai medicine. Registration M e c h a n i s m s : Section 13 states that The Director o f the Institute for Traditional Thai Medicine is the Central Registrar and the provincial health chiefs are the provincial registrars. The Committee on Protection and Promotion o f Traditional Thai Medicinal Intelligence establishes rules concerned with standards and procedures on registration o f IPRs on traditional Thai medicine under Section 6. The Institute for Traditional Thai Medicine under the Office o f the Permanent Secretary, the Ministry o f Public Health, having the authority to carry out duties concerned with protection is responsible for overseeing the registration process. (Act on Protection and Promotion o f Traditional Thai Medicinal Intelligence, B . E 2542 )  10) United States of America Indian Arts and Crafts A c t o f 1990 and other relevant measures T w o mechanisms have been established in the U S to work in conjunction: 1.  The Indian Arts and Crafts Board was established in 1935. It operates as an agency within the Department o f the Interior and administers the Indian Arts and Crafts A c t ( I A C A ) . T h e Board interprets potentially unlawful conduct for enforcement purposes. It can, for example, refer complaints o f criminal violations to the Federal Bureau o f Investigation and recommend to U . S . Attorney General that criminal proceedings be instituted.  Transformation o f Traditional Knowledge 124  2.  The Database o f Official Insignia of Native American Tribes is maintained by the United States Trademark and Patent Office ( U S P T O ) . U S P T O Database o f Official Insignia o f Native American Tribes was established as a result o f the Trademark L a w Treaty Implementation A c t (1998).  The 1990 Native American Graves Protection and Repatriation A c t ( N A G P R A ) also protects certain aspects o f T K . N A G P R A mainly has to do with the protection material culture but it does protect American Indian and Native Hawaiian culture in many respects through its concern with sacred objects, the illicit sale o f religious artifacts and the protection o f sacred sites. American law does not generally recognize moral rights but the federal Visual Artists Protection A c t also gives artists (including Native American artists) moral rights-type protection in certain instances (Patterson-2006). Policy Objectives: The stated objectives o f the mechanisms are as follows: (1) I A C A : •  T o promote the development o f Indian arts and crafts and to create a board to assist therein, and for other purposes;  (2) Database o f Official Insignia: •  To address issues surrounding the protection o f the official insignia o f federally and State recognized Native American tribes (Section 302(a), Trademark L a w Treaty Implementation Act).  The legal protection provided i n the United States is, in summary, intended: •  T o protect and preserve cultural heritage;  •  T o prevent commercial interests from falsely associating their goods or services with indigenous peoples.  Scope of Subject Matter: Section 309.2(d)(1)) o f I A C A states, "The Implementing Regulations for the A c t provide that, in general, the term "Indian product" means "any art or craft product made by an Indian." The Regulations furthermore illustrate that Indian products  Transformation o f Traditional Knowledge 125  include, but are not limited to: (i) art works that are in a traditional or non-traditional Indian style or medium; (ii) crafts that are i n a traditional or non-traditional Indian style or medium; (iii) handcrafts, i.e. objects created with the help o f only such devices as allow the manual skill o f the maker to condition the shape and design o f each individual product (Section 309.2(d)(2)). In the Database o f Official Insignia the term "Official insignia of Native American tribes" means the flag or coat o f arms or other emblem or device o f any federally or staterecognized Native American tribe, as adopted by tribal resolution and notified to the United States Patent and Trademark Office. Conditions of Protection of TK: To be protected under I A C A a product must meet the following requirements: •  it must be an "Indian product" as defined in the A c t and the Implementing Regulations;  •  is must have been produced after 1935;  •  the producer o f the concerned Indian product must be resident i n the United States.  The Database o f Official Insignia provides protection: •  i f signs or symbols contain tribal names, recognizable likenesses o f Native Americans or symbols perceived as being Native American in origin they are included in the database.  Scope of Rights: Under Section 104(a) I A C A prohibits the offering or displaying for sale or selling o f any good, in a manner that falsely suggests it is Indian produced, an Indian product, or the product o f a particular Indian or Indian tribe or Indian arts and crafts organization, resident within the United States. In Section 2 the Board has the power to create Government trademarks o f genuineness and quality for Indian products and the  Transformation o f Traditional Knowledge 126  products o f particular Indian tribes or groups. The scope o f rights arising from the creation o f such a mark is set out in the Trademark A c t o f 1946, as amended. The Database o f Official Insignia provides registered tribes with evidence o f the relationship between the tribe and their insignia, and could serve as a cause for denying an application for registration o f a trademark Rights Holder: In Section 6 o f I A C A the term "Indian" is defined as "any individual who is a member o f a tribe and for the purposes o f this section is certified as an Indian artisan by an Indian tribe." The term "Indian tribe" means: "(a) any Indian tribe, band, nation, Alaska Native village, or other organized group or community which is recognized as eligible for the special programs and services provided by the United States to Indians because o f their status as Indians; or, (b) any Indian group that has been formally recognized as an Indian tribe by a State legislature or by a State commission or similar organization legislatively vested with State tribal recognition authority." The term "Indian arts and crafts organization" means any legally established arts and crafts marketing organization composed of members o f Indian tribes. In the Database o f Official Insignia, the beneficiaries o f the Database are federal and state recognized tribes. Acquisition of Rights/Registration Mechanism: Section 2 o f I A C A states that, "The Board may create Government trademarks o f genuineness and quality for Indian products and register them in the United States Patent and Trademark Office without charge. W i t h the Database o f Official Insignia rights are granted to member o f a tribe by virtue o f having the insignia registered in the Database. Sanctions and Enforcement: Within the United States, the I A C A empowers the I A C B to refer violations to the Federal Bureau o f Investigation. The I A C B may independently recommend to the Attorney General o f the United States that criminal  Transformation of Traditional Knowledge 127 proceedings be instituted. The IACB may also recommend that the Secretary of the Interior refer a matter to the Attorney General for civil enforcement action. The criminal and civil penalties for violating the I A C A are as follows: first time individual offenders are subject to fines of up to $250,000 or five years' imprisonment; businesses are subject to fines of up to $1,000,000; subsequent violations expose individual offenders to fines of up to $1,000,000 or fifteen years' imprisonment, while business offenders face up to $5,000,000 infines.(U.S. Indian Arts and Crafts Act of 1990 and other relevant measures)  Summary  The Sui Generis models analyzed in this chapter constitute a wide range of policy choices made by the countries with regard to the protection of TK. Most of the models define the policy objectives they aim to implement in respect of the protected subject matter. Numerous laws or measures on T K protection share certain policy objectives, such as the conservation of T K and associated biological diversity. In some national contexts, different aspects of T K protection are being covered by distinct and complementary Sui Generis measures. Numerous Sui Generis measures are linked to the legal regulation of access to, and use of, tangible subject matter that is associated with TK, such as genetic or biological resources. A n important part of these measures are the exceptions and limitations through which their application is circumscribed. Most Sui Generis measures for T K combine two basic legal concepts to govern the use of T K : (1) the regulation of access to TK, and (2) the grant of exclusive rights for TK. This combination reflects the two major legal frameworks within which most measures are adopted and implemented: intellectual property frameworks and access and benefit-sharing arrangements. In many cases, access regulation for T K is part of larger access and benefitsharing frameworks that apply also to genetic or biological resources.  Transformation o f Traditional Knowledge 128  The national Sui Generis measures combine diverse conceptual and policy tools to customize legal protection for T K . These conceptual and policy tools include: (1) the regulation o f access to T K , (2) the grant o f exclusive rights for T K , (3) concepts from the law on the repression o f unfair competition, and (4) references to customary laws o f indigenous and local communities. Most o f the national Sui Generis models also delimit the scope o f subject matter which they cover through combinations o f three criteria: •  sectorial distinctions: for example, traditional medicine traditional agriculture, etc. Some laws include distinct sets o f rights for such sectoral areas. For example, the African M o d e l Legislation provides for farmers' rights in the agricultural sector, in addition to community intellectual rights for all sectors;  •  association o f the T K with tangible subject matter;  •  to genetic resources, T K related to any properties o f biological diversity, T K related to any aspects o f ecosystems, etc.  The African Union Model Legislation is the only model that is intended to be broad enough to allow the different nation states i n the Union to adapt the model to suit their needs, but does maintain that P I C must be respected. Brazil's Provisional Measure is the only model that pertains specifically to Genetic Resources; therefore only concerning T K as it related to Genetic Resources; but also specifically states that any T K protection should not limit I P R laws. The Costa Rican, Indian and Peruvian Laws are all limited to T K protection as it is associated with biological resources and all draw heavily from C B D provisions. However, they differ i n that Costa R i c a ' s L a w has strongly provisions for farmers rights; while India uses strong enforcements o f fines and j a i l terms for unauthorized use (also designed somewhat to protect farming and harvesting, particularly rice harvesting); and Peru's complex L a w contained P I C provisions, but is intended only for T K not in the Public Domain (therefore, no retroactive protection for already expropriated T K ) ; and royalty provisions for payments to Indigenous groups and/or an Indigenous fund.  Transformation o f Traditional Knowledge 129  Both Thailand's and China's Laws are intricate and designed only to protect the ancient and lucrative Asian medicine traditions i n the respective countries, both also relying on existing I P R laws. The U . S . A c t dating back to 1935 is the oldest Sui Generis model in the world has unique trademark protection provisions for insignia and the most severe financial and incarceration provisions in the world for T K infringements: with maximum 5 years prison terms or $100,000 fines for individuals and $5,000,000 for corporations. O f all the existing national models the Philippines A c t is the most comprehensive in terms o f protection for a wide range o f T K including genetic resources, plants, Oral Traditions, literature, designs, religions, visual and performing arts, and includes provisions requiring P I C and Customary Laws to resolves disputes. It should be noted that most o f these ten models were implemented in this new millennium and represent the first "group" o f national Sui Generis models for T K protection in the world. Most o f these legislations and laws are relatively recent and many o f the countries are just beginning to analyse the affects o f their practical applications. Weather these mechanisms function effectively within the countries and Indigenous communities is also a matter for further analysis over time. However, these countries should be commended by Indigenous peoples and the international community for their progressive and groundbreaking work on the issues. The application o f these national legislations and laws are also being closely observed by international forums as models for the development international instruments for the protection o f T K (World Intellectual Property Organization, Current National Models for Sui Generis Legislation, Geneva 2002).  Transformation o f Traditional Knowledge 130  CHAPTER EIGHT: INTERNATIONAL INITIATIVES This chapter w i l l review the state o f discourse in the various international forums that are undertaking discussions on T K in the world. These forums include: the U N Permanent Forum on Indigenous Issues (UNPFII), United Nations Educational, Scientific and Cultural Organization ( U N E S C O ) and various other U N forums, and W T O . Although these forums have been engaging in important T K discussions, they have not been as active on T K issues as the C B D and the W I P O I G C - the two international forums who have taken leading roles in defining T K rights at the international level. The T K discourse has been so significant in the C B D and the W I P O I G C that these two forums w i l l be discussed together in the following chapter.  Background The first Indigenous rights advocate to approach an international forum was Chief Deskaheh, a Cayuga orator from the Haudenosaunee Six Nations Confederacy. In 1914 he lead a delegation to Ottawa to assert that the Haudenosaunee had a treaty with the British Crown and the Canadian Government had no jurisdiction over Haudenosaunee people and lands. In 1921 Deskaheh, appointed "Speaker o f the Six Nations Council," presented as travel credentials a passport authorized by his nation and crossed the Atlantic to seek British aid. Deskaheh spoke to the League of Nations in Geneva in 1922 asking the League to try to 1  prevent Canada from appropriating Haudenosaunee lands. Deskaheh's attempt failed but did get some support from a few countries including the U K who spoke out i n the forum against Canada's mistreatment o f Indigenous peoples under the U K s rule.  1  Mohawk Nation, (1978). Basic Call to Consciousness. New York, New York: Akwesane Notes.  Transformation o f Traditional Knowledge 131 In 1924 Deskaheh along with Haudenosaunee delegation petitioned the League o f Nations to be admitted as a member with the support o f the Dutch Government. When presented with the challenge from Indigenous Peoples, the member-states closed ranks to exclude the petition for admission. Another Haudenosaunee delegation approached The 2  League o f Nations forum in San Francisco in 1944 which was attempting to form a new international organization which later became the United Nations. A s a new world order was emerging at the end World War II, The League o f Nations was eventually dissolved in 1946 as the U N had emerged i n 1945 as the primary international body to represent the Nations and peoples o f the world and uphold the principles o f Human Rights. Subsequently various U N conventions, treaties, institutions and forums have been developed and continue to be developed to represent the common principles o f humanity and establish a body o f International L a w to regulate the conduct o f Nations. M a n y o f these conventions, treaties, institutions, forums and international laws have a direct impact on the rights o f Indigenous peoples and have dealt directly with issues o f T K . The International Labor Organization (ILO) had been dealing with some issues o f Indigenous peoples as workers dating back to 1936 under the League o f Nations. With its relatively recent status as a U N affiliated organization in 1957, I L O passed Convention 107 entitled "The Indigenous and Tribal Populations Convention." Notwithstanding its limitations, I L O Convention 107 performed the valuable task o f inscribing for the first time in International L a w the category o f indigenous and tribal peoples, whom it correctly represents as deserving special attention. I L O Convention 107 would later be replaced with 3  I L O Convention 169 in the 1980s.  Venne, Sharon, (1992). Our Elders Understand Our Rights: Evolving International Law Regarding Indigenous Peoples (pp. 30). Penticton, British Columbia: Theytus Books Ltd. Ibid., 34  2  3  Transformation o f Traditional Knowledge 132  The Human Rights Base Indigenous peoples' rights initially came into the U N System as an element o f Human Rights. The two key U N Human Rights conventions are The International Convent on Civil  and Political Rights (1967) and The International Convent on Social, Cultural and Economic Rights (1967). Article 1 i n both conventions is the primary source o f Indigenous rights recognizing that " a l l peoples have the right to self-determination." The International Convent on Social, Cultural and Economic Rights further recognizes that " a l l peoples have the right to social, cultural and economic development."  Indigenous peoples rights are,  therefore, recognized initially in the U N as rights o f "peoples" under Human Rights L a w . Just prior to the adoption o f the two conventions, the U N Commission into Permanent Sovereignly Over Natural Resources ( P S O N R ) concluded that Indigenous peoples have P S O N R and resulted in U N General Assembly passing Resolution 18(05) recognizing that ( P S O N R ) belongs to both 1) "peoples" and 2) "states." Indigenous peoples have consistently stated that their right to self-determination and P S O N R includes the T K rooted in their peoples and territories (Trask-2002).  The International Framework The main international forums that have emerged as impacting and dealing directly with issues o f T K are the C B D and W I P O . In addition, the W T O Trade Related Aspects o f Intellectual Property Rights (TRIPs) Agreement, The World Bank Group ( W B G ) and various U N forums are currently discussing issues o f T K . The International Forums are intended to set standards for Indigenous rights. International standards represent inclusive processes, which Indigenous people voice and vision has been heard rather than denied (Henderson2001). These international bodies and the nature o f their T K programs o f work w i l l be briefly outlined below.  Transformation o f Traditional Knowledge 133  K e y Principles Some key principles and concepts that have emerged in the International Framework discussions are: 1) Customary L a w , 2) Sui Generis legislation, and 3) free, prior and informed consent (FPIC). Customary L a w " is regarded as the "traditional laws" and/or "cultural protocols" that have regulated the use o f T K within Indigenous nations for centuries. In some forums there is a recognition that Customary Laws are evolving and have a key role to play i n the development o f international standards on the regulation o f T K . Sui Generis legislation is discussed i n a number o f forums as new forms o f legislation that be developed for T K , that are not based on forms o f existing legislation. "Free, prior and informed consent" (sometimes called "prior informed consent" or PIC) is discussed i n the W I P O , C B D and various U N forums, as a principle that there should be a process o f acquiring the consent o f Indigenous peoples before any access to their T K and/or natural resources is granted. Indigenous peoples have consistently demanded that W B G policies on Indigenous peoples recognize and require Indigenous peoples' free, prior and informed consent. This was also recommended to the W B G by the W o r l d Commission on Dams and, in 2004, by the Extractive Industries Review. The W B G has rejected recognition o f and respect for F P I C . Instead, the W B G approved, in its decision on the response to the Extractive Industries Review in August/September 2004, that the standard to be adopted and applied w i l l be "free, prior and informed consultation resulting in broad community support" (FPICon), a "new" concept which is less restrictive on corporations backed by the W B G to develop on or extract resources from Indigenous lands. The concept o f F P I C o n remains exclusive to the W B G and has been used in the latest version o f draft Operational Policy 4.10 on Indigenous Peoples (December-2004) and issues i n relation to its  Transformation o f Traditional Knowledge 134  interpretation and application as part o f the overall process o f developing and approving W o r l d Bank projects (McKay-2005).  The Working Group on Indigenous Populations The Working Group on Indigenous Populations (WGIP) was established i n 1982 as a subsidiary organ o f the Sub-Commission on the Promotion and Protection o f Human Rights and meets annually in Geneva, usually during the last week o f July. (Trask-2002) The W G I P is mandated to "(1) review developments pertaining to the promotion and protection o f human rights and fundamental freedoms o f indigenous peoples; and (2) to give attention to the evolution o f international standards concerning indigenous rights." The Working Group is open to all representatives o f Indigenous peoples and their communities and organizations. The openness o f the Working Groups' sessions, which also includes the participation o f representatives o f Governments, N G O s and United Nations agencies, has strengthened its position as a focal point o f international action on indigenous issues. The United Nations Voluntary Fund for Indigenous Populations was established in 1985, with the purpose o f assisting representatives o f indigenous communities and organizations to participate in the deliberations o f the Working Group.  (WGIP Draft) Declaration on the Rights of Indigenous Peoples In 1985 the W G I P began preparing a Draft Declaration on the Rights o f Indigenous Peoples, taking into account the comments and suggestions o f participants in its sessions, particularly representatives o f Indigenous peoples and Governments. A t its eleventh session, in July 1993, the Working Group agreed on a final text for the draft United Nations  Transformation o f Traditional Knowledge 135 Declaration on the Rights o f Indigenous Peoples and submitted it to the Sub-Commission.  4  The W G I P has since been meeting annually in Geneva to discuss issues pertaining to Indigenous rights and the Draft Declaration, but has been reluctant to make any changes to the text in the 1993 draft. The Draft Declaration has since been under review by an ad hoc working group o f the U N Commission on Human Rights. The Declaration was recently under review by the new U N Human Rights Council (established i n 2006) and passed on June 29, 2006 at the new Commission initial meeting- despite being voted against by Canada and Russia. Indigenous peoples organizations and their supporting N G O s and member states at the Human Rights Council "expressed their deep frustration and disappointment with the Canadian government's effort to stall this much needed and long overdue human rights instrument... but i n the end Canada was one o f only two nations to vote against the Declaration" (Joint press release "Draft Declaration on the Rights o f Indigenous Peoples Moves Forward Despite Canadian Government Interference-June 29, 2006). The proposed Declaration w i l l now move forward to consideration for adoption by the U N General Assembly. Provisions o f the Draft Declaration which pertain most directly to T K are: Article 12: Indigenous peoples have the right to practice their cultural traditions and customs. This includes the right to maintain, protect and develop the past, present and future manifestations o f their cultures, such as archaeological and historic sites, artifacts, designs, ceremonies, technologies and visual and performing arts and literature, as well as the right to the restitution o f cultural, intellectual, religious and spiritual property taken without their free and informed consent or in violation o f their laws, traditions and customs.  Posey, Darrell & Dutfleid, Graham, (1996). Beyond Intellectual Property: Toward Traditional Resource Rights for Indigenous Peoples and Local Communities (pp. 29). Ottawa, Ontario: International Development Research Centre.  Transformation o f Traditional Knowledge 136 Article 29: Indigenous peoples are entitled to recognition o f the full ownership, control and protection o f their cultural and intellectual property. They have the right to special measures to control, develop and protect their sciences, technologies and cultural manifestations, including human and other genetic resources, seeds, medicines, knowledge o f properties o f their fauna and flora, oral traditions, literatures, designs and visual and performing arts. If adopted by the General Assembly, the new Declaration w i l l be an imperative tool for applying the U N human rights convents to the Indigenous peoples o f the earth (Battiste and Henderson-2003) and Indigenous peoples w i l l have Articles 12, 29, and other articles making reference to T K rights, to hold states and the international community to these obligations in the ongoing discourse and discussions.  The U N Permanent Forum on Indigenous Issues The proposal to create a permanent forum focused on Indigenous issues under the auspices o f the U N Commission on Human Rights was officially introduced at the Vienna W o r l d Conference on Human Rights in 1993. Its establishment then became one o f the central objectives o f the program o f work for the International Decade o f Indigenous Peoples (1995-2004). U N workshops were held to discuss the possibility o f a permanent forum in Copenhagen, Denmark i n 1995 and in Santiago de Chile in 1997. In February 1999, an ad hoc working group o f the Commission on Human Rights met i n Geneva to elaborate proposals for the forum. A second ad hoc working group met the following year, in February 2000, to finalize a proposal for the Commission on Human Rights. A t its fifty-sixth session, the Commission on Human Rights decided to recommend to the Economic and Social Council that it set up a permanent forum on Indigenous issues. O n 28 July 2000, the Economic and Social Council adopted resolution establishing the Permanent Forum on Indigenous Issues.  Transformation o f Traditional Knowledge 137 The mandate o f the Permanent Forum is to: (a)  Provide expert advice and recommendations on indigenous issues to the Council, as well as to programs, funds and agencies o f the U N through the Council;  (b)  Raise awareness and promote the integration and coordination o f activities relating to indigenous issues within the U N system; and  (c)  Prepare and disseminate information on indigenous issues.  The Forum meets once a year for ten working days and submits an annual report to the Council on its activities, including any recommendations for approval. The report is also distributed to relevant U N organizations, funds, programs and agencies as a way o f furthering the dialogue on Indigenous issues within the U N system. The Forum is comprised o f sixteen independent experts, eight o f whom are nominated by governments and eight o f whom are appointed by the President o f the Council, following formal consultations with governments on the basis o f consultations with indigenous organizations. The Forum has frequently dealt with various aspects o f T K and was mandated in 2004 to hold a workshop on free, prior and informed consent i n N e w Y o r k January 17-19, 2005. The workshop produced a set o f strong recommendations and guidelines on F P I C which was approved by members and participants at the 6th meeting o f the Forum in M a y 2005. The Forum also held a Technical Workshop on Indigenous Traditional Knowledge in Panama City, 21-23 September 2005, that was convened following a recommendation o f the Permanent Forum at its fourth session in 2003.The Forum called for the convening o f such a workshop, i n collaboration with U N agencies dealing with T K issues and with the participation o f Indigenous experts, to promote a collaborative, complementary and holistic approach to T K i n order to enhance better understanding o f Indigenous concerns and possible  Transformation o f Traditional Knowledge 138  solutions (Report o f the Technical Workshop on Indigenous Traditional Knowledge-2006). The Workshop made over twenty recommendations including: •  Relevant international human rights treaty bodies should strengthen the monitoring o f the implementation by States parties o f provisions relevant to indigenous traditional knowledge.  •  The U N P F I I should provide human rights-related information and advice to intergovernmental organizations with respect to traditional knowledge to promote the development by these organizations o f a better understanding for human rights related to indigenous traditional knowledge.  •  The U N P F I I should commission a study or studies on customary laws pertaining to indigenous traditional knowledge i n order to investigate to what extent such customary laws should be reflected in international and national standards addressing indigenous traditional knowledge. The study should include an analysis o f indigenous customary laws as a potential sui generis system for protecting indigenous traditional knowledge. Relevant U N system organizations should collaborate to promote the respect for and recognition o f indigenous peoples' customary legal systems pertaining to indigenous traditional knowledge in national legislation and policies and regarding their application.  The Permanent Forum's program o f work incorporates T K as one o f its priority issues and also includes starting work on coordinating and networking with all the various organization in the U N system working on T K .  Various Other U N Forums Aside from W I P O , C B D , W G I P and the Permanent Forum, Other U N Forums dealing with T K issues include: United Nations International Children's Emergency Foundation ( U N I C E F ) , The Food and Agricultural Organization ( F O A ) , The W o r l d Health Organization ( W H O ) and The International Foundation for Agricultural Development ( I F A D ) . The United Nations Commission for Trade and Development ( U N C T A D ) forum has had numerous discussions on T K with regard to trade and published a book entitled  Protecting and Promoting Traditional Knowledge: Systems, National Experiences and International Dimensions in 2005. United Nations University has also been highly involved  Transformation o f Traditional Knowledge 139  with T K issues at a research level. United Nations Economic, Social and Cultural Organization ( U N E S C O ) has also dealt with issues o f T K its convents including: The  Convention for the Safeguarding of Intangible Cultural Heritage (2003) and The Convention on the Protection and Promotion of the Diversity of Cultural Expressions (2005). The 1972 Convention Concerning the Protection of the World Cultural and Natural Heritage was U N E S C O ' s first Convention intended to protect significant heritage and environment sites. The second 2003 Convention, The Convention for the Safeguarding of Intangible Cultural Heritage, is designed to bind its State Parties to take necessary measures to ensure the safeguarding o f their cultural heritage and to promote cooperation and solidarity at regional and international levels in this field. The Convention is also intended to encourage the exchange o f information, experiences and joint initiatives. In Article 1 the stated "purposes o f the Convention" are: (a)  to safeguard the intangible cultural heritage;  (b)  to ensure respect for the intangible cultural heritage o f the communities, groups and individuals concerned;  (c)  to raise awareness at the local, national and international levels o f the importance o f the intangible cultural heritage, and o f ensuring mutual appreciation thereof;  (d)  to provide for international cooperation and assistance.  Article 2 defines "intangible cultural heritage" as: the practices, representations, expressions, knowledge, skills - as well as the instruments, objects, artifacts and cultural spaces associated therewith - that communities, groups and, in some cases, individuals recognize as part o f their cultural heritage. This intangible cultural heritage, transmitted from generation to generation, is constantly recreated by communities and groups i n response to their environment, their interaction with nature and their history, and provides them with a sense o f identity and continuity, thus promoting respect for cultural diversity and human creativity...  Transformation o f Traditional Knowledge 140  The "intangible cultural heritage", as defined in Article 2 above, is manifested inter alia in the following domains: (a)  oral traditions and expressions, including language as a vehicle o f the intangible cultural heritage;  (b)  performing arts;  (c)  social practices, rituals and festive events;  (d)  knowledge and practices concerning nature and the universe;  (e)  traditional craftsmanship. (The Convention for the Safeguarding o f Intangible Cultural Heritage-2003)  The Convention for the Safeguarding of Intangible Cultural Heritage adopted by U N E S C O in 2003 potentially protects a significant amount o f T K (Wenland-2006) although T K is not specifically mentioned in the Convention. U N E S C O s third convention, The  Convention on the Protection and Promotion of the Diversity of Cultural Expressions (2005), is intended to be the last in U N E S C O s trilogy o f Conventions to protect the world's culture. T K is not specifically mentioned in the Articles i n the Convention, although it is i n the part o f the preamble text that reads: Recognizing the importance o f traditional knowledge as a source o f intangible and material wealth, in particular the knowledge systems o f indigenous peoples, and its positive contributions to sustainable development, as well as the need for its adequate protection and promotion. However, the Articles o f the Convention do not place any authority in Indigenous peoples to control expressions o f T K , but rather place authority in states in Article 1 o f the Convention that reads: (h) to reaffirm the sovereign rights o f states to maintain, adopt and implement policies and measure that they deem appropriate for the protection and promotion o f the diversity o f cultural expressions on their territory. (The Convention on the Protection and Promotion o f the Diversity o f Cultural Expressions-2005)  Transformation o f Traditional Knowledge 141  U N E S C O has recently focused its attention on the importance o f "local and indigenous knowledge" as a resource for promoting cultural diversity, combating impoverishment and elaborating a more equitable knowledge society. The project " L o c a l and Indigenous Knowledge Systems in a Global Society" ( L I N K S ) is included in U N E S C O ' s Medium-term Strategy for 2002-2007 which priorizes: •  Revitalizing traditional knowledge transmission within local communities by strengthening ties between elders and youth and evaluating the opportunities and constraints o f existing educational frameworks.  •  Identifying customary rules and processes that govern knowledge access and control, i n order to inform efforts to develop appropriate normative instruments for protecting traditional knowledge.  Most o f these forums within the U N family have not forged formal working relationships on T K issues, such as between W I P O and The C B D . Consequently, there was an initiative to propose a meeting between the ten U N agencies dealing with T K at the M a y 2005 fifth U N Permanent Forum on Indigenous Issues.  T h e U N Special R a p p o r t e u r Reports The U N C O M M I S S I O N O N H U M A N R I G H T S Sub-Commission on the Promotion and Protection o f Human Rights mandated Chairperson-Rapporteur Mrs. Erica Daes to conduct three studies on: 1) Indigenous peoples relationship to land, 2) Indigenous peoples heritage, and 3) Indigenous peoples Permanent Sovereignty over Natural Resources. In the second o f these H U M A N R I G H T S O F I N D I G E N O U S P E O P L E S Reports the draft principles and guidelines for the protection o f the heritage o f indigenous people (Geneva, 28 February - 1 M a r c h 2000) were proposed including the following provisions: 9. The prior, free and informed consent o f the owners should be an essential precondition o f any agreements which may be made for the recording, study, display, access, and use, i n any form whatsoever, o f indigenous peoples' heritage.  Transformation o f Traditional Knowledge 142  12. The heritage o f indigenous peoples has a collective character and is comprised o f all objects, sites and knowledge including languages, the nature or use o f which has been transmitted from generation to generation, and which is regarded as pertaining to a particular people or its territory o f traditional natural use. The heritage o f indigenous peoples also includes objects, sites, knowledge and literary or artistic creation o f that people which may be created or rediscovered in the future based upon their heritage. 13. The heritage o f indigenous peoples includes all moveable cultural property as defined by the relevant conventions o f U N E S C O ; all kinds o f literary and artistic creation such as music, dance, song, ceremonies, symbols and designs, narratives and poetry and all forms o f documentation o f and by indigenous peoples; all kinds o f scientific, agricultural, technical, medicinal, biodiversityrelated and ecological knowledge, including innovations based upon that knowledge, cultigens, remedies, medicines and the use o f flora and fauna; human remains; immoveable cultural property such as sacred sites o f cultural, natural and historical significance and burials. 23. National laws for the protection o f indigenous peoples' heritage should: (a)  be adopted following consultations with the peoples concerned, i n particular the traditional owners and teachers o f religious, sacred and spiritual knowledge, and, wherever possible, should have the informed consent o f the peoples concerned;  (b)  deny to any person or corporation the right to obtain patent, copyright or other legal protection for any element o f indigenous peoples' heritage without adequate documentation o f the free and informed consent o f the traditional owners to an arrangement for the sharing o f ownership, control, use and benefits; ...  (d)  ensure the labeling, correct attribution and legal protection o f indigenous peoples' artistic, literary and cultural works whenever they are offered for public display or sale.  Although the Daes reports are yet to be ratified by the U N General Assembly the conclusions for the time being hold the weight o f report mandated by Commission o f Human Rights (Trask-2002).  Transformation o f Traditional Knowledge 143  W T O and T R I P S The escalating value o f Intellectual Property and its increasing economic importance to the pharmaceutical industry and agriculture and cultural goods prompted the United States to spearhead a move for a multilateral agreement protecting economic rights i n Intellectual Property. The efforts to secure such an agreement were begun in the late 1980s with the General Agreement on Trade and Tarifs ( G A T T ) negotiation. These negotiations culminated in 1994 with the Trade Related Aspects o f Intellectual Property Rights (TRIPs) Agreement. TRIPs came into effect January 1, 1995 and is the primary instrument that set up and governs the W T O , and set up a TRIPs Council to monitor the situation world wide and to report on the non-compliance o f Members. The agreement applies to all members o f the W T O and is 5  backed by the same dispute settlement rules that govern other W T O agreements. The breach of these rules can result i n retaliatory measures including sanctions. The TRIPs Agreement is described as one o f the three "pillars" o f W T O , the other two being G A T T and the General Agreement on Trade i n Services ( G A T S ) . According to the W T O , the TRIPs attempts to narrow the differences in the way IPRs are protected and enforced around the world.  A r t i c l e 27.3 (b) and A r t i c l e 39.3 of T R I P s The T R I P S Agreement requires a review o f Article 27.3(b) that deals with patentability or non-patentability o f plant and animal inventions, and the protection o f plant varieties. The TRIPs Agreement. Article 27.3 (b) has emerged i n discussions as the primary provisions affecting T K . Article 27.3 (b) says the following: .. .(in dealing with) plants and animals other than micro-organisms, and essentially biological processes for the production o f plants or animals other Crean, Susan, Taylor, Caldwell & Young-Ing, Greg, (2003). In Handbook on Creator's Rights (pp 6). Toronto, Ontario: Creators' Rights Alliance.  5  Transformation o f Traditional Knowledge 144  than non-biological and microbiological processes. However, Members shall provide for protection o f plant varieties either by patents or an effective sui generis system by a combination thereof. The provisions o f this subparagraph shall be reviewed four years after the entry into force o f the W T O Agreement. Article 39.3 o f the TRIPs also requires governments to protect certain data against unfair commercial use. Article 39.3 holds out the possibility that certain information can be protected against unfair commercial use even when that information has been disclosed to the public. The Andean Community countries (Bolivia , Colombia, Ecuador, Peru, and Venezuela) and Brazil have come up with a defensive protection plan for T K within the TRIPs agreement which calls for an amendment (Taylor-2004). The Brazil/Andean Community proposal seeks to bring the T R I P s i n line with the main objectives o f the C B D and w i l l require patent applicants to do the following: •  Identify the T K used in their invention;  •  Disclose the source o f the T K ;  •  Provide proof o f prior informed consent (PIC); and  •  Provide evidence o f benefit -sharing with the owners o f the T K used in the invention.  The Brazil/Andean Community proposal is not the only one calling for defensive protection for T K by means o f an amendment to the TRIPs. A proposal calling for a modification o f Article 29 o f the TRIPs has been submitted by India. The Indian proposal calls on the W T O Council for the TRIPs to examine the relationship between the C B D and the T R I P s . However, this call for the examination o f the C B D - T R I P s interface is being frustrated by the actions o f the United States and Japan (Dutfield-2003). The India proposal is i n line with Paragraph 19 o f the 2001 Doha Declaration that says the T R I P s Council should also look at the relationship between the TRIPs Agreement and the C B D , regarding the protection o f traditional knowledge and folklore. It adds that the T R I P S Council's work on  Transformation o f Traditional Knowledge 145  these topics is to be guided by the T R I P S Agreement's objectives (Article 7) and principles (Article 8), and must take development issues fully into account.  Summary T K started as an unspoken element o f Indigenous peoples right to self-determination and Permanent Sovereignty Over Natural Resources in the emerging Human Rights regime. Since the U N Human Rights convents i n 1946, T K has evolved as a key issue throughout the evolution o f a vast number U N forums and the W T O . It has, indeed, arguably become the most salient Indigenous issue in the U N system. The various U N and other international bodies discussed issues o f T K illustrates that T K has is now regarded as an issue o f immense international importance, especially over the last decade. Most o f the forums discussed i n this chapter are at the initial stages o f incorporating T K into their mandates or beginning the process o f setting parameters for dealing with T K . A process is underway to engage T K and Indigenous peoples on a global scale and begin standard setting that w i l l spread across the U N and into its many member states and into Indigenous and local communities.  Transformation o f Traditional Knowledge 146  CHAPTER NINE: DEFINING AND REGULATING T K IN THE INTERNATIONAL FRAMEWORK Throughout this multi-faceted international framework no forum is yet to enact (an) international regime(s) or otherwise create any other international law on T K . This chapter w i l l discuss the discourse on T K as it has evolved i n the two international forums who have dealt with T K most extensively one o f which w i l l likely be the first forum to take concrete actions on T K , W I P O and the C B D . These two U N forums have taken leading roles on international T K standard setting far beyond the progress made in the forums discussed i n the previous chapter. The primary T K discourses i n W I P O and the C B D has been taking place within mandated committees o f the two forums. In W I P O the T K role has been assigned to  the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC), and in the C B D the T K discussions have taken place in: 1) The A d Hoc Open Ended Working Group on Article 8(j) and Other Related Provisions o f the Convention (8(j) Working Group), and, 2) the A d Hoc Open Ended Working Group on Access and Benefit Sharing ( A B S Working Group). W I P O and the C B D have also been following the T K discourse in both forums and have both had discussions and passed resolutions around working co-operatively and in a complementary manner on T K issues.  The Convention on Biological Diversity The C B D is a U N Convention established in 1992 with the objective o f "conservation of biological diversity, the sustainable use o f its components and the fair and equitable  Transformation o f Traditional Knowledge 147  sharing o f the benefits arising out o f the utilization o f genetic resources." The Handbook o f 1  The Convention on Biological Diversity ( 3 Edition-2005) states that the long term purpose rd  o f the C B D is to establish International L a w to regulate the use o f biological and genetic resources and the associated T K . Nation states are members o f the C B D as "Parties" to the Convention and pass resolutions dealing with the Convention at the Conference o f the Parties (COP) every two years.  The Convention on Biological Diversity and Traditional Knowledge There are two key Working Groups established under the C B D in which Indigenous knowledge and Indigenous advocates may play an important role: 1) The 8(j) Working Group and, 2) The A B S Working Group. The special interest o f Indigenous peoples T K is recognized primarily in Article 8(j) of the C B D that reads: Each Contracting Party shall, as far as possible and as appropriate, subject to its national legislation, respect, preserve and maintain knowledge, innovation and practices o f indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use o f biological diversity and promote their wider application with the approval and involvement o f the holders o f such knowledge, innovations and practices and encourage the equitable sharing o f the benefits arising from the utilization o f such knowledge, innovations and practices. 2  The Parties to the Convention and Indigenous representatives meet each year at the (8(j) Working Group to discuss issues around the implementation of Article 8(j) and make decisions to be ratified at the next C O P . The C B D other main working group is the A B S Working Group which also convenes the Parties and Indigenous representatives each year.  The Convention on Biological Diversity (2005). The Handbook of The Convention on Biological Diversity (3 ed.) (pp. 12). Montreal, Quebec. Ibid., 139 1  rd  2  Transformation o f Traditional Knowledge 148  T h e 8(j) W o r k i n g G r o u p A t the Seventh Conference o f the Parties (COP7), the Parties clarified previous decisions and held that the most appropriate means o f protecting Indigenous knowledge is "based on a combination o f appropriate approaches... including the use o f existing intellectual property mechanisms, sui generis systems, customary law, the use o f contractual arrangements, registers o f traditional knowledge, and guidelines and codes o f practice" ( C B D C O P Decision V I / 1 0 A , para. 33.) More particularly, the 8(j) Working Group has a working draft o f potential components o f a Sui Generis system for the protection o f Indigenous knowledge which include (among other items): 2.  Clarity with regard to ownership o f traditional knowledge associated with biological and genetic resources.  4.  Recognition o f elements o f customary law relevant to the conservation and sustainable use o f biological diversity with respect to: (i) customary rights in indigenous/traditional/local knowledge; (ii) customary rights regarding biological resources; and (iii) customary procedures governing access to and consent to use traditional knowledge, biological and genetic resources.  5.  A process and set o f requirements governing prior informed consent, mutually agreed terms and equitable sharing o f benefits with respect to traditional knowledge, innovations and practices associated with genetic resources and relevant for the conservation and sustainable use o f biological diversity.  10.  Provisions regarding enforcement and remedies.  11.  Relationship to other laws, including international law.  12.  Extra-territorial protections.  The potential components mark a critical advancement in the work o f the 8(j) Working Group, particularly its concrete inclusion o f the role o f Indigenous Customary L a w in protecting Indigenous knowledge. W i t h regard to Sui Generis protection o f T K , the 8(j)  Transformation o f Traditional Knowledge 149  Working Group has been mandated to: 1) consider non-intellectual-property-based Sui Generis forms o f protection o f Indigenous knowledge; 2) further develop, as a priority issue, elements for sui generis systems for Indigenous knowledge protection, 3) review and make recommendations regarding the international regime on access and benefit-sharing with a view to including sui generis systems and measures for the protection o f Indigenous knowledge; and 4) explore, taking into account the work o f the I G C , the potential o f and conditions under which the use o f existing as well as new forms o f intellectual property. The International Indigenous Forum on Bio-Diversity (IIFB) is an organization o f Indigenous representatives from around the world that have been participating i n C B D process. The IIFB has a network to discuss issues between meetings and holds separate two day meetings prior to C B D meetings to formulate Indigenous strategies and positions. The IIFB also sits at the C B D as an "Indigenous" block with a status separate from Parties (Nations states) and N G O s . The IIFB also holds in camera meetings during C B D meetings to formulate positions and statements during the ongoing discussions.  The A B S W o r k i n g G r o u p Without going extensively into the background of the A B S Working Group, a brief introduction regarding Indigenous knowledge protection follows. Between the Sixth and Seventh Session o f the Conference o f the Parties (2002-2004), there has been a substantive and, generally, successful movement to commence discussion and negotiation o f an international regime on Access and Benefit Sharing on Genetic Resources and Associated Traditional Knowledge. This was a remarkable and unprecedented move from voluntary Guidelines (i.e., the B o n n Guidelines-discussed next) to an international treaty discussion i n a two-year period at the international level. The A B S Working Group developed The Bonn Guidelines that were enacted by C O P in 2002 to regulate parties' treatment biological  Transformation o f Traditional Knowledge 150  resources and T K . The voluntary guidelines make several references to Indigenous peoples and T K including: I General Provision 16: Contracting Parties... in accordance to the Convention should (a) (vi) Establish mechanisms to ensure that their decisions are made available to relevant indigenous and local communities and relevant stakeholders, particularly Indigenous and local communities, (b) (ii) Respect customs, traditions, values and customary practices o f indigenous and local communities, (iii) Respond to requests for information from indigenous and local communities. I V Steps i n the A B S Process: Competent authority(ies) granting prior and informed consent (31) Respecting established legal rights o f indigenous and local communities associated with the genetic resources being accessed or where traditional knowledge associated with genetic resources is being accessed, the prior and informed consent o f indigenous and local communities and the approval and involvement o f the holders o f traditional knowledge, innovations and practices should be obtained, in accordance with their traditional practices.. . 3  The B o n n Guidelines are voluntary (i.e. non-binding) but have been agreed to by C O P and adopted as guiding principles for Parties in the interpretation o f the C B D until such time as International Laws are established. Specifically, at C O P 7 (2004), the Parties provided the A B S Working Group with a mandate to commence negotiations o f an international regime (Alexander-2005).  The Bonn Guidelines The B o n n Guidelines were developed and negotiated with minimal involvement o f Indigenous peoples. A t the A B S Working Group, Bonn 2001, IIFB determined that it did not have the capacity to meaningfully negotiate legal text and decided to not participate in the discussions. A s a result o f the I I F B ' s decision, Indigenous peoples did not engage in  Secretariat of the Convention on Biological Diversity (2002). Bonn Guidelines on Access to Genetic Resources and Fair and Equitable Sharing of the Benefits Arising out of their Utilization (pp.l) Montreal, Quebec.  3  Transformation o f Traditional Knowledge 151  negotiations until the contact session at C O P 6 (2002). Unfortunately, very few o f the I I F B ' s suggested textual amendments and additions were amenable to the Parties. A s the Guidelines are viewed as "evolutionary" in nature, the C O P 6 also decided to reconvene the A B S Working Group to advise the C O P on: (a) Use o f terms, definitions and/or glossary, as appropriate; (b) Other approaches as set out i n decision VI/24 B ; (c) Measures, including consideration o f their feasibility, practicality and costs, to support compliance with prior informed consent o f the Contracting Party providing such resources and mutually agreed terms on which access was granted in Contracting Parties with users o f genetic resources under their jurisdiction; (d) Its consideration o f any available reports or progress reports arising from the present decision; and (e) Needs for capacity-building identified by countries to implement the Guidelines.  Internationally Binding Regime From the onset o f discussions, there has been a vigorous debate between developed and developing countries on the nature o f the A B S regime, whether it should be a binding or voluntary. The Guidelines are clearly voluntary i n nature, but this has not ended the debate. The debate is currently active in two forums, the W I P O I G C and the W o r l d Summit on Sustainable Development. The issue o f an international regime on A B S was addressed as a distinct agenda item by the Inter-Sessional Meeting held in March 2003 on the Multi-Year Programme o f Work o f the Conference o f the Parties up to 2010, The Inter-Sessional Meeting invited "Parties to provide information to the Executive Secretary on experience gained in the use o f the B o n n Guidelines, taking into consideration information provided by Parties pursuant to decision  Transformation o f Traditional Knowledge 152  VI/24." It also invited "Parties, Governments and relevant organizations to submit to the Executive Secretary their views on the process, nature, scope, elements and modalities o f an international regime on access to genetic resources and benefit-sharing prior to the second meeting o f the A d H o c Open-ended Working Group on Access and Benefit-sharing." With respect to next steps i n addressing this issue, the Inter-Sessional Meeting recommended that "the A d Hoc Open-ended Working Group on Access and Benefit-sharing should, i n its consideration o f other approaches, in accordance with its mandate as specified in decision VI/24 A , consider the process, nature, scope, elements and modalities o f an international regime and provide advice to the Conference of the Parties at its seventh meeting on how it may wish to address this issue."  Indigenous Engagement on the Guidelines The above background, particularly the information regarding the further development o f the Guidelines and an internationally binding regime, raises the pertinence o f future engagement by Indigenous peoples in these international discussions. This background demonstrates the hurried rate o f development in the A B S forum. Indigenous peoples must engage and affirm their sovereignty over Indigenous knowledge to counter any misguided assumptions. Therefore, Indigenous peoples must bring clarity to the Guidelines with respect to their applicable customary laws, requirements for prior informed consent and key capacity-building measures, among other issues.  Principles Underlying the Guidelines are basic principles that may be inconsistent with Indigenous peoples' perspectives, these include: (a) Contract law is the most suitable legal framework for dealing with ABS;  Transformation of Traditional Knowledge 153 (b) Nation-States will be the primary "Contracting Parties" in A B S arrangements; (c) Indigenous peoples are "stakeholders"; (d) Commercialization of Indigenous Knowledge and monetary benefits thereof are incentives for Indigenous peoples to enter into A B S arrangements; (e) Prior informed consent is a one time event that occurs at beginning of an A B S arrangement; (f) Prior informed consent of Indigenous peoples may be determined by a national/competent authority; and (g) National governments will act in the best interests of Indigenous peoples within their countries. Under paragraph 9, under the Heading "Scope" of the Guidelines states that: A l l genetic resources and associated traditional knowledge, innovations and practices covered by the Convention on Biological Diversity and benefits arising from the commercial arid other utilization of such resources should be covered by the Guidelines, with the exclusion of human genetic resources. 4  I n d i g e n o u s P e o p l e s as K n o w l e d g e  Holders  While Indigenous Knowledge generally appears within the scope, the Guidelines are silent on the issue of sovereignty over Indigenous knowledge. If Indigenous peoples are committed to engaging the Guidelines, it is imperative that they spell out in clear and unequivocal terms that Indigenous peoples are custodians of their Indigenous knowledge and have the exclusive right to control, manage and, in particular circumstances, own their knowledge. In practical terms, Indigenous knowledge holders will not communicate or share  4  Ibid, 2  Transformation o f Traditional Knowledge 154  their knowledge without this fundamental affirmation. The Guidelines must be thoroughly examined and enriched to reflect this fact.  Customary L a w For many Indigenous peoples, their custodial relationship with their knowledge has Customary L a w as its basis. The basic presumption that contract law, domestic law and other international instruments w i l l adequately address A B S with respect to Indigenous knowledge is therefore flawed. Put simply, the Guidelines fail to take into consideration a substantive body o f law, Customary L a w , which is particularly applicable in the context o f accessing Indigenous knowledge. Parties must also recognize that for many Indigenous peoples the commercializing o f their sacred knowledge w i l l not be an option. It may be contrary to Indigenous Customary L a w to commercialize their knowledge. That is, in some Indigenous societies, there exists a categorization o f Indigenous knowledge and some information such as medicinal plants, sacred sites or particular spiritual practices, customs and traditions, which cannot be shared for monetary benefits. This may be closely tied to the issue o f prior informed consent.  5  Prior Informed Consent The term "prior informed consent" is articulated in the Convention, and increasingly it is set out as a fundamental requirement for access to Indigenous knowledge in Indigenous peoples' declarations and statements. Broadly, in the C B D , it means the consent o f a party to an activity that is given after receiving full disclosure regarding the reasons for the activity, the specific procedures the activity would entail, the potential risks involved and the full implications that can realistically be seen. Article 15 o f the Convention on access to genetic Alexander, Merle, (2003). In Customary Law: Applying Sharing within Communities to International Instruments (pp. 22). Paper presented at the meeting of the Creator's Rights Alliance National Conference on Traditional Knowledge. Montreal, Quebec.  5  Transformation of Traditional Knowledge 155 resources requires that "Access to genetic resources shall be the subject to the prior informed consent of the Contracting Party providing such resource, unless otherwise determined by that Party." In Article 8 of the C B D , on in situ conservation the "approval and involvement" of Indigenous peoples is required for the application of their knowledge to conservation problems. Sub-paragraph 26.d. of the Guidelines partially appears to address our concerns as follows: 26.  The basic principles of a prior informed consent system should include: d.  Consent of the relevant competent national authority(ies) in the provider country. The consent of relevant stakeholders, such as indigenous and local communities, as appropriate to the circumstances and subject to domestic law, should also be obtained. 6  It is a more fundamental consideration for Indigenous peoples, whether there is a need for separate guidelines that singularly address access and equitable benefit sharing with respect to Indigenous Knowledge. It is a question that speaks to the extent that the Bonn Guidelines are a workable context for protection, preservation and maintenance of our knowledge. This option may be considered if the suggested amendments and the perspectives of Indigenous peoples are not better reflected in the future regime, binding or voluntary.  Recent C B D Developments  The C B D Third Meeting of the A B S Working Group was February 11-18, 2005, in Bangkok. Throughout the A B S Working Group meeting Indigenous delegates participated in the discussions and formulation of all IIFB interventions including those on such topics as Certificate of Origin/Legal Providence, Measures to Ensure Compliance with Prior and  Secretariat of the Convention on Biological Diversity (2002). Bonn Guidelines on Access to Genetic Resources and Fair and Equitable Sharing of the Benefits Arising out of their Utilization (pp.3).Montreal, Quebec.  6  Transformation o f Traditional Knowledge 156  Informed Consent, Future Evaluation o f Progress, a Proposal for Enhanced Indigenous Participation i n the A B S Working Group and the Opening and Closing Statements. Most o f the IIFB interventions were met with approval by most o f the Parties and w i l l potentially have a positive impact on Indigenous peoples' aspirations within the A B S Working Group. After a carefully planned solicitation o f support from The European Union, Brazil, Ethiopia, India and N e w Zealand, the Increased Indigenous Participation Proposal was i n the end blocked by Canada and Australia. The C B D forth 8(J) Working Group was held January 23-27, 2006, in Granada, Spain. Approximately 370 participants attended the meeting, representing 95 governments, as well as Indigenous and local community groups, U N agencies, intergovernmental and N G O s , academia and industry. Delegates at the fourth meeting o f the Working Group considered and adopted nine recommendations for C O P - 8 on: progress i n the implementation o f the programme o f work; collaboration with the Working Group on Access and BenefitSharing on the negotiations for an international regime on access to genetic resources and benefit-sharing ; participatory mechanisms; elements o f an ethical code o f conduct for the respect o f the cultural and intellectual heritage o f indigenous and local communities; indicators o f progress towards the 2010 biodiversity target linked to Article 8(j); elements for Sui Generis systems o f T K protection; potential socioeconomic impacts o f genetic use restriction technologies ( G U R T s ) ; recommendations to the U N P F I I ; and a composite report on status and trends o f T K . The venue o f the fourth meeting o f the Working Group on Article 8(j) - Granada, Spain - offered a historic backdrop for deliberations on Indigenous issues. It was at the city's Alhambra castle in 1492 that Columbus was given the mandate to set out on his epic voyage that led h i m to what later became known as the Americas, giving rise to many indigenous  Transformation o f Traditional Knowledge 157  issues debated to date, including in the context o f the C B D . More than five hundred years later, some 370 Indigenous and government representatives traveled to Granada to work together towards the protection o f T K and biological diversity. Discussions focused on how Indigenous representatives should be involved in the work o f other C B D bodies, most notably the A B S Working Group. Agenda items and outcomes o f the fourth meeting o f the Working Group on Article 8(j) focused on the establishment o f a voluntary funding mechanism for Indigenous participation, the outset o f a consultation process on the elements o f an ethical code o f conduct, and the collaboration with the Working Group on A B S . Looking at the accomplishments o f the meeting, the establishment o f a voluntary funding mechanism to facilitate Indigenous and local community participation i n the C B D ' s work was hailed by governments and Indigenous representatives alike as a concrete step towards greater indigenous involvement in the C B D process. Following the example o f other U N bodies, the fund is to be administered in a transparent fashion with the involvement o f Indigenous and local communities. The funding mechanism w i l l be structured according to the U N P I I classification o f seven geo-cultural regions, rather than the conventional five U N regions used by the C B D . Discussions on regional classification and criteria to award funding evidenced that some governments and Indigenous participants are pondering over who should represent Indigenous and local communities at C B D meetings. They suggested, for example, further streamlining to ensure a balance between gender, geographical origin, and representativeness o f Indigenous and local communities. The recommendation on the development o f an ethical code o f conduct to ensure respect for the cultural and intellectual heritage o f Indigenous and local communities carries the promise o f becoming one o f the distinctive features o f the work on Article 8(j). Some countries thought Indigenous communities' opinions should be reflected i n the general  Transformation o f Traditional Knowledge 158  opinions o f their governments through their own internal consultation mechanisms, while others proposed that indigenous community positions should be coordinated through the IIFB. Most agreed that, at this stage, setting up a process, including a time schedule allowing for completion o f the elements o f the code by C O P - 9 , was a tangible step towards the establishment o f what may become an essential instrument for the protection o f T K . The extent to which Indigenous voices are heard during the fourth meeting o f the A B S Working Group is, thus, yet to be determined. However, the fact that the two Working Groups are held back-to-back is definitely an advantage for Indigenous participants, as many of them w i l l stay and follow the A B S discussions, and delegates who advocated for their enhanced participation, w i l l have the chance to reiterate their positions. The fourth meeting o f the A d H o c Open-ended Working Group on Access and Benefit-sharing o f the C B D was January 30 to February 3, 2006 in Granada. More than 450 participants attended the meeting. The Working Group considered: other approaches to complement the Bonn Guidelines on A B S , including an international certificate o f origin/source/legal provenance; and measures to support compliance with P I C o f the party providing genetic resources and mutually agreed terms ( M A T ) on which access was granted. The Working Group postponed consideration o f agenda items on the use o f terms and indicators for A B S Working Group in the context o f evaluation o f progress i n the implementation o f the Convention's Strategic Plan. The meeting made some progress on the international regime, agreeing on a recommendation to the C O P and a draft to serve as the basis for future negotiations. This draft, although bracketed almost in its entirety (i.e., not yet accepted by consensus), contains a structure and core issues that may allow for a more formalized negotiation process to take place at C O P - 8 and beyond. However, deep divisions remain among the key players on  Transformation o f Traditional Knowledge 159  issues such as: the need for a new instrument and whether it should contain legally binding elements; the inclusion o f derivatives and products o f genetic resources; disclosure requirements in applications for IPRs; and the participation o f indigenous and local communities in the A B S negotiations. This desire for a strong regime met a powerful, yet polyphonic opposition from developed countries. Some, like Australia, Japan and Canada, made it clear that they were not convinced o f the need for a new international instrument at this stage, and in any case, favored one with a narrow scope without any reference to derivatives. Others, such as the E U , Norway and Switzerland, preferred leaving options open. In the case o f the E U , this was interpreted by many as a signal that a common position is not yet developed, since its members diverge in their views about the potential benefits/impacts o f a binding A B S regime. Some, like Spain, publicly declared their preference for a binding regime, while others expressed their caution about any moves i n this regard, and as a result, the E U was unable to present alternative proposals and maintained a "defensive" position. Discussions on the mechanisms to make any international regime "workable" focused on the creation o f a certificate o f origin, source or legal provenance and the establishment o f disclosure requirements in IPR applications. These issues inherently relate to the relationship o f the future regime with existing international agreements and processes, like the International Treaty on Plant Genetic for Food and Agriculture, the T R I P S Agreement and WIPO. The C B D is at a critical point o f progress in both the 8(j) and A B S Working Groups, and it is evident that Indigenous peoples may have a substantial role to play i n the development o f CBD-based international instruments. A t this point, it is unclear whether  Transformation o f Traditional Knowledge 160  there w i l l be a stand-alone Sui Generis system advocated by the 8(j) Working Group that w i l l parallel the international regime being negotiated by the A B S Working Group. The fact that the C B D is widely endorsed by nation states is significant i n that it recognizes (1) the importance o f Indigenous knowledge (in "traditional ecological knowledge" language) to the conservation and sustainable use o f biological diversity; (2) it acknowledges the contributions o f Indigenous knowledge as innovative approaches to environmental studies, and recognizes the validity o f Indigenous science; and (3) it recognizes the need to link relevant information concerning Indigenous knowledge, innovations, and practices to scientific knowledge, conservation studies, and sustainable development. This Convention requires the exchange o f information and results o f technical, scientific and socio-economic research, as well as information on training and educational programs. In addition, the Convention encourages the repatriation o f information to the proper Indigenous peoples (Henderson-2000).  The World Intellectual Property Organization W I P O is a specialized agency o f the United Nations that co-ordinates the work o f several constituent "unions" including the Paris union on industrial property and the Berne union for the protection o f literary and artistic work. The Convention establishing W I P O was signed in Stockholm, Sweden in 1967 and was amended in 1979. W I P O ' s mandate is "to promote the protection o f intellectual property." W I P O is based in Geneva, Switzerland. The objectives o f W I P O are: 1) To promote the protection o f intellectual property through co-operation among states and, where appropriate, i n collaboration with any other international bodies; 2) To ensure administrative co-operation among Unions.  Transformation o f Traditional Knowledge 161  To become a member o f W I P O , a Nation States must deposit an instrument o f ratification or accession with the Director-General i n Geneva. There were 178 States as members o f W I P O in 2002.  7  WIPO and Traditional Knowledge A s the specialized United Nations agency responsible for the promotion o f Intellectual Property (IP) worldwide, W I P O has worked in the field o f traditional cultural expressions (folklore) for over thirty years, often i n collaboration with U N E S C O and has, more recently, considered specific IP issues related to Indigenous knowledge and genetic resources. In the last decade, the W I P O has faced significant questions regarding the relationship o f the IP system with Indigenous knowledge. Concerns have been raised relating to the misappropriation o f Indigenous knowledge by third parties, such as the unauthorized use o f traditional designs, songs and dances by the entertainment and fashion industries to create works that are then protected by Intellectual Property. Furthermore, holders o f Indigenous knowledge have expressed a need to be better informed o f the Intellectual Property implications o f making their Indigenous knowledge available to a wider audience; for instance, o f using certain distinctive elements o f their Indigenous knowledge as IP assets that may lead to economic growth. Prior to 1995 W I P O ' s position was that the organization had no mandate to deal with issues o f Indigenous peoples. In the mid-1900s this position quickly shifted as the organization was confronted with the issues o f the problems with the application o f Intellectual Property to Indigenous knowledge. In particular, in 1998-1999 W I P O consulted  Crean, Susan, Taylor, Caldwell & Young-Ing, Greg, (2003). In Handbook on Creator's Rights (pp. 8). Toronto, Ontario: Creator's Rights Alliance. 7  Transformation o f Traditional Knowledge 162  with a wide range o f stakeholders such as Indigenous and local communities, nongovernmental organizations, governmental representatives, academics, researchers and private sector representatives to determine the IP needs and expectations o f holders o f Indigenous knowledge. In 1998-1999 W I P O conducted a Fact Finding Mission to consult with Indigenous peoples around the world and collect information. The Canadian segment o f the Fact Finding Mission visited Vancouver, Saskatoon, Calgary, Ottawa, Montreal and Iqualuit i n 1998. W I P O developed the following definition o f "traditional knowledge" for the purposes o f a 1998-1999 fact-finding mission (that has come to be regarded somewhat as a standard definition): Traditional knowledge refer [s] to tradition-based literary, artistic or scientific works; performances; inventions; scientific discoveries; designs; marks, names and symbols; undisclosed information; and all other tradition-based innovations and creations resulting from intellectual activity i n the industrial, scientific, literary or artistic fields. "Tradition -based" refers to knowledge systems, creations, innovations and cultural expressions which have generally been transmitted from generation to generation; are generally regarded as pertaining to a particular people or its territory; and, are constantly evolving in response to a changing environment. Categories o f traditional knowledge could include: agricultural knowledge; scientific knowledge; technical knowledge; ecological knowledge; medicinal knowledge, including related medicines and remedies; biodiversity-related knowledge; traditional cultural expressions ("expressions o f folklore") i n the form o f music, dance, song, handicrafts, designs, stories and artwork; elements o f language, such as names, geographical indications and symbols; and, movable cultural properties. Excluded from this description would be items not resulting from intellectual activity in the industrial, scientific, literary or artistic fields, such as human remains, languages i n general, and other similar elements o f "heritage" i n the broad sense. W i t h respect to Indigenous knowledge protection, the Committee at its Sixth Session agreed to examine a comprehensive approach to Indigenous knowledge protection including: •  using existing IP systems (including an array o f IP rights and the law o f unfair competition),  Transformation o f Traditional Knowledge 163  •  adapted IP systems with Sui Generis elements, and  •  new, stand alone Sui Generis systems, as well as non IP options, such as trade practices and labelling laws, liability rules, use o f contracts, customary and indigenous laws and protocols, regulation o f access to genetic resources, and remedies based on such torts as unjust enrichment, rights o f publicity, and blasphemy.  These options discussed at this Sixth Session were either already in use i n national or regional systems or have been discussed in Committee sessions or other W I P O activities. In particular, a study on the role o f Indigenous customary law within the IP system was approved by the I G C at its Third Session i n accordance with document WIPO/GRTKF/IC/3/11. Based upon the Sixth Session developments, it is clear that there is upcoming opportunity for Indigenous peoples' organizations to make substantial contributions to the work o f the I G C . A key opportunity that may be open w i l l be the informal consultative sessions o f the ad-hoc Indigenous caucus that w i l l now meet prior to each I G C session. If key Indigenous peoples' organizations were to take a lead role in drafting text for a principled approach forward on issues such as Indigenous customary law, this would likely have great influence. The primary impediment is that the voluntary funding initiatives have not contributed to the voluntary fund. In last decade, the W I P O has faced significant questions regarding the relationship o f the IP system with Indigenous knowledge. Concerns have been raised relating to the misappropriation o f Indigenous knowledge by third parties, such as the unauthorized use o f traditional designs, songs and dances by the entertainment and fashion industries to create works which are then protected by Intellectual Property. Furthermore, holders o f Indigenous knowledge have expressed a need to be better informed o f the IP implications o f making their Indigenous knowledge available to a wider audience; for instance, o f using certain  Transformation o f Traditional Knowledge 164  distinctive elements o f their Indigenous knowledge as IP assets that may lead to economic growth.  The World Intellectual Property Inter-Governmental Committee A s a result o f the conclusions o f the Fact Finding Mission the W I P O Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) was established by the W I P O General Assembly i n October 2000 as an international forum for debate and dialogue concerning the interplay between Intellectual roperty and T K , genetic resources and traditional cultural expressions (folklore). A t this time the I G C was given a three-year mandate to meet twice a year with Member States and Non-Governmental Organizations (including Indigenous representatives) to study and gather information on the relationship between Intellectual Property and T K , genetic resources and folklore. A t the September 2003 W I P O General Assembly the IGCs program o f work was extended for an additional two-year term and given the additional mandate to: .. .elaborate the draft text o f core principles and substantive elements o f international instruments on intellectual property and genetic resources, traditional knowledge and folklore, as basis for further consideration o f the issues...  Recent WIPO IGC Developments A t the Sixth Session o f the I G C in March 2004 a proposal for an International Instrument and a proposal for the I G C to work collaboratively with the Parties to the C B D emerged as the key issues. After long debates over the C B D proposal the Chair concluded that no consensus could be reached, therefore the matter was referred back to the W I P O General Assembly. A proposal document was also submitted by the African Group containing principles and objectives for the drafting o f a binding International Instrumental  Transformation o f Traditional Knowledge 165  for the protection o f Traditional Knowledge, Folklore and Genetic Resources. Some debate over particular elements o f the document ensued, but the member states generally agreed that the document provided a good basis to move forward on the issue. The member states also generally agreed that national frameworks for Sui Generis legislation for Traditional Knowledge, Folklore and Genetic Resources should continue, complimentary to the work the I G C should undertake to accelerate the process o f drafting a binding International Instrument(s). The secretariat has also initiated research on the application o f Indigenous Customary L a w i n the International Instrument(s). A statement o f principles to be incorporated into an International Instrument(s) was also presented by a group o f Indigenous N G O s who had held caucuses throughout the session. The seventh session o f the W I P O I G C in November 2004 considered the issue o f increased Indigenous participation following an intervention made by Indigenous N G O s at a meeting and a supportive proposal that followed from the N e w Zealand delegation. In the end, the I G C agreed to allow for more speaking time to Indigenous N G O s and to hold a half day o f Indigenous N G O panel presentations chaired by an Indigenous representative prior to each future session. The Committee's work on what it had called "Expressions o f Folklore" had now become focused on documents on what had become the more frequently used term "Traditional Cultural Expressions" (TCEs). A t this point in the I G C s progression T C E s and T K had come to be regarded as two separate items in the Committee's mandate. Member States at I G C Seven also considered principles set out the two separate developing documents on T C E s and directed the I G C secretariat to further develop these principles. T w o documents on international standards on the regulation o f Traditional Knowledge were also discussed and met wide spread approval pending an opportunity for Member States and  Transformation o f Traditional Knowledge 166  N G O s to do a more detailed review and submission by the end o f February. Another document on principles regarding Genetic Resources was also discussed and with no general consensus being reached, the I G C secretariat was instructed to further develop the document for consideration at I G C Eight in June, 2005. In the W I P O discourse Traditional Cultural Expressions (also referred to as "expressions o f folklore") are seen to form part o f cultural heritage and identity, and their protection and preservation are linked to the promotion o f cultural diversity and human creativity. The relationship between IP and T C E s raises some specific cultural and legal policy issues. Accordingly, although, in practice, such expressions may overlap with the field o f T K , this area has been given a distinct focus in W I P O ' s work. Over the past several decades, W I P O has undertaken extensive work on the protection o f T C E s . In 1982, W I P O worked with U N E S C O , to develop a sui generis model for the IP-type protection o f traditional cultural expressions: the U N E S C O - W I P O M o d e l Provisions (1982). I G C Eight, June 6-10, 2005, was the first I G C that the Enhanced Indigenous Participation that Indigenous peoples had lobbied for (to a satisfactory degree o f success under the circumstances) at I G C Seven were to be implemented. Committee Meeting began in the morning o f June 6 with presentations from Indigenous N G O s from the United States, Canada, Sweden, Africa and Indonesia, which were generally well received by the delegates. The official I G C Eight session began i n the afternoon with the opening statements and welcoming protocols for the new Chair and Co-Chair, including the Informal Indigenous Consultative Forum Opening Statement which thanked the Chair and member states for supporting the Increased Indigenous Participation and the morning panel presentations, supporting the establishment o f the Voluntary Fund, supported T C E and T K documents and  Transformation o f Traditional Knowledge 167  asking the Committee to priorize it's work on Customary L a w as a means to protect and preserve T K and T C E s . Although I G C Eight turned out to be one o f the more uneventful o f the recent IGCs, there were high hopes among Indigenous groups and developing counties at the beginning o f the meeting that progress could be made on the new single document W I P O / G R T K F / I C / 8 / 4 on T C E s and the new single document W I P O / G R T K F / I C / 8 / 5 on T K . The Informal Indigenous Consultative Forum saw I G C Eight as a potential opportunity to have the progressive T C E and T K documents accepted leading to the establishment o f international standards and perhaps a legal regime. However, the initial proceedings o f I G C ended up being dominated by nation states non-consensus over the T K and T C E documents and their contents and, even more so the, Genetic Resources documents ( W I P O / G G R T K F / I C / 7 / 9 ) and ( W I P O / G G R T K F / I C / 7 / 1 0 ) . These discussions degenerated into debates over the mandate o f the I G C on whether it should continue to include Genetic Resources, and some nation states and member states questioning weather the Committee should continue its mandate. Indeed a great deal o f floor time was spent on these debates and other drawn out discussions on the Voluntary Fund. This breakdown i n progress lead to long periods Agenda "In Session" not occurring while the Chair allowed backroom meetings to take place. Towards the end o f I G C Eight a wide consensus emerged i n support o f the T C E and T K documents as Indigenous groups, developing counties and many developed countries all spoke widely i n favor o f the documents; however, it was openly blocked by Canada and United States, the only two members who spoke out against the documents on the floor.  In  the end, I G C 8 once again tabled the Voluntary Fund and deferred the mandate issues to the W I P O General Assembly.  Transformation o f Traditional Knowledge 168  A t the W I P O General Assembly i n September 2005 the I G C mandate was extended for two additional years. I G C Nine, A p r i l 20-24, 2006, was the first meting o f the renewed mandate. A t I G C Eight many member states had expressed that the Committee's progress on genetic resources would be long term, and there was wide agreement that progress on T K and T C E s should be the focus o f the Committee's short term work. A s the W I P O Secretariat believed there was widespread support for at I G C Eight for W I P O / G R T K F / I C / 8 / 4 on T C E s W I P O / G R T K F / I C / 8 / 5 on T K , the documents were presented to I G C nine unchanged as W I P O / G R T K F / I C / 9 / 4 on T C E s W I P O / G R T K F / I C / 9 / 5 on T K . Aside from the re-presentation o f the two documents, I G C Nine was marked by two other important events: The Norway Proposal and the establishment o f the Voluntary Fund. The Norway Proposal is a proposal for charting the I G C s way forward that was modeled on the progression o f The Paris Convention. The basic tenements o f the Proposal are that it appears there needs to be a great deal more discussion on the binding or non-binding international instrument(s) on T K and T C E s under consideration at the I G C , and, therefore, the Committee should begin with a Political Declaration on T K and T C E s as the start o f the "roadmap" o f its future work. The Voluntary Fund for increased Indigenous participation at I G C meetings that had been under discussion for four years was finally established at I G C Nine. The W I P O Secretariat announced the establishment o f the Fund at the beginning o f the meeting and that SwedBio, a division o f The Swedish Government's Sweden Development Agency, had contributed an initial $65,000 U . S . to the fund. The Fund's establishment received wide support and France announced an additional contribution o f 20,000. A special committee o f Indigenous N G O s was struck and met during I G C Nine to decide on which applications would be funded to attend I G C Ten.  Transformation of Traditional Knowledge 169  During the course o f the I G C 9 discussions there was wide spread support for the Norway Proposal as a way forward and the T K and T C E documents. O f the very few member states who spoke against elements o f the documents, Canada spoke against the non Intellectual Property proposals in the documents and Australia spoke strongly against the proposal that Customary L a w should prevail over Intellectual Property L a w . Lead by Brasil, Peru, The African Union, Norway, India, many other member states, and Indigenous people, there was wide agreement that the I G C should consider the Norway Proposal and set a short term goal o f establishing a Political Declaration on T K and T C E s based on the principles set out i n the two documents. A significant portion o f I G C Nine was spent on members states making comments on specific elements o f the text the T C E and T K documents. In the end, the Committee decide that I G C Ten i n December 2006 should be extended one or two days to allow for more time for comments on specific elements o f the text o f the documents. The slow but encouraging progress o f the I G C w i l l continue at the tenth meeting i n December 2006.  Summary The work o f the C B D and the W I P O I G C is ongoing and it progresses slowly from meeting to meeting; however, these two important forums remain at the forefront o f defining T K rights at the international level. The ongoing discussions w i l l continue to play out as a conflict between Indigenous peoples continuing and consistent call for Human Rights and certain National States attempts to priorize economic interests. Indeed the final outcomes w i l l depend on the persistence tenacity, negotiations and lobbying that transpire between the representatives o f the rights o f peoples and representatives o f the rights o f states i n the U N system.  Transformation o f Traditional Knowledge 170  There have been significant developments in the international framework leading to mechanisms to "reconcile" Indigenous legal perspectives with Western counterparts as it applies to T K i n recent years. Indigenous peoples have become increasingly involved in these discussions and have aggressively moved themselves to the forefront with limited resources. Indigenous peoples have gained considerable credibility in part because o f their advocates' ability to integrate moral suasion with informed succinct analysis. This advocacy effort is still at an early stage; but has produced concrete opportunities and good reason for cautious optimism. Developments in many international forums has increased demands upon limited human and financial resources available to Indigenous N G O s while discussions have advanced beyond principles towards negotiation o f an international regime. Yet Indigenous peoples still find themselves with few resources i n a highly sophisticated, often legal, debate. The challenge that Indigenous peoples now face is turning the procedural equality that they have fought for into substantial progress. One o f the solutions that has been identified by Nation-States to facilitate more substantive contributions by Indigenous peoples' organizations, i n the C B D and the W I P O I G C . A s a Voluntary Fund for Indigenous participation has recently been established at the I G C , this could signal the beginning o f a new era o f increased Indigenous participation which may eventually influence the C B D process and other forums beyond W I P O .  Transformation o f Traditional Knowledge 171  CHAPTER TEN: EMERGING MODELS AND STRATEGIES This concluding chapter w i l l : 1) outline and establish principles in the use o f T K in cultural practice, artworks and other tangible and intangible cultural expressions and commercial products; 2) establish some theoretical frameworks on Indigenous peoples transformation o f T K through their cultural practice; 3) discuss useful principles and concepts to regulate the use o f T K in the contemporary context, and 4) summarize the potential for the establishment o f effective T K protection and regulation i n Canada and at the international level. Related concepts and principles developed through Common L a w i n Canada and Australia w i l l also be discussed with regard to their relevance to the establishment o f T K regulation, and the legal recognition o f concepts such as: Moral Rights, Authors' Rights, and Collective Copyright. A n analysis o f the practices and works o f one particular Indigenous artist, B i l l Reid, w i l l also be analyzed to illustrate how concepts from Indigenous and European Laws can be fused in concepts regulating the use and transformation o f T K though contemporary practice. It should be noted that other protective mechanisms for Intellectual Property besides copyright, patents and trademarks, have been explored with regard to their potential to protect T K , including: trade secrets, industrial designs, plant breeders rights, and geographic indicators. However, it is not within the scope o f this dissertation to go into those discussions and issues.  Transformation o f Traditional Knowledge 172  T h e Legacy of B i l l R e i d A n examination o f the legacy o f the late Haida Artist, B i l l Reid, reveals some useful insights and concepts for T K regulation within the context o f the arts. Reid was the grandson o f Haida artist Charles Edenshaw and nephew o f the Haida artist Charles Gladstone, who had began to push Haida artistic boundaries. Gladstone and Edenshaw were among the first Haida artists to access new mediums and technologies introduced by Europeans such as various metals and industrialized carving tools. In their traditional artistic practices they were both totem pole carvers and made copper bracelets and hair pendants adorned with traditional Haida designs. W i t h the introduction o f European culture and new materials and tools, they also began making objects such as brooches and napkin rings using gold and silver. Edenshaw knew, as every great Native artist before him, how to push the limits o f design while adhering to the traditional vocabulary o f Native art.  1  Reid sometimes claimed that his grandfather, Charles Gladstone, had instructed him in the lore, history and tradition o f the Haida people when he was i n his early teens. Charles 2  Edenshaw trained directly under his uncle Charles Gladstone and started to develop his skills as a young carver and jewelry maker after a long visit with his uncle in 1897. A s he was making the career transition from radio broadcaster to artist in the 1950s, B i l l Reid visited his uncle Chalres Edenshaw to train under him on several occasions. The Haida artistic lineage, therefore, was passed from Gladstone to Edenshaw to Reid in accordance with Haida Customary L a w . F r o m the beginning o f his artistic career, Reid set out to continue along the path o f Gladstone and Edenshaw in transforming the Haida artistic tradition. After completing a two year jewelry making course at Ryerson Institute o f Technology i n the early 1950s, Reid told a reporter, Rhodi Lake, that "he wanted to apply the principles o f 1  Tippett, Maria, (2004). In Bill Reid: The Making of an Indian, (pp. 74). Toronto, Ontario: Random House  Transformation o f Traditional Knowledge 173  contemporary jewelry making to Haida art... in order to cultivate a twentieth-century audience for his work."  3  Another important aspect o f Reid's legacy is that he set out to move Indigenous art out the commonly held perception o f unevolving folkloric work to be viewed i n museums, to the status o f high art to be viewed i n galleries. In this effort Reid had a part i n organizing an exhibit o f Indigenous art called "The Arts and Handicrafts Show" at the Vancouver A r t Gallery i n 1954, and also exhibited jewelry in the show. In the mid 1950s Reid also undertook many visits to Haida G w a i to salvage many o f the ancient totem poles, study them, and carve new poles, masks and sculptures based on his interpretation o f the Haida tradition. Reid believed that traditional Haida aesthetics could be improved upon. For example, he stated that he did not like the shapes o f some o f the faces and noses on the ancient poles, so he was going to shape them differently. In spring o f 1959, Reid resigned from his job at the C B C (8) to work full time on a project recreating a Haida village at the Museum o f Anthropology ( M O A ) at the University o f British Columbia ( U B C ) with the assistance o f N i m k i s h carver Doug Cranmer. Reid and Cranmer's work on the project received some attention at the time because o f the tools they were using. Reid often spoke with passion about his tools, most o f which he made up himself (based on adaptations o f traditional tools)... A t the same time he appreciated the speed o f power tools. The M O A U B C project 4  was the first time Indigenous carvers publicly used chain saws the do the bucking and roughing out work on totem poles. Throughout his career as an artist Reid associated and worked with many Haida and other Indigenous artists who informed his work. Throughout the 1960s through to the 1990s he continued his innovations o f Haida symbols in jewelry, mask, and totem pole making.  3  4  Ibid., 117 Ibid., 121  Transformation o f Traditional Knowledge 174  Through repousee, casting, soldering and silver overlay, Reid extended Northwest coast jewelry into three dimensions (whereas) past technology only allowed shallow engraving o f designs on metal surfaces. He also made large wood carvings the size o f which had not been seen before i n the Haida tradition (ie. Bear Sculpture 1962 and Raven and the First Man 1980) and bronze casted even larger monumental sculptures (ie. Killer Whale 1985 and The Spirit of Haida Gwaii 1989) which represented the first time that medium had been applied to Haida art.  Indigenous National Artistic License A t the end o f his career Reid had become an Icon in the Canadian artworld and was regarded an ambassador and hero o f the Haida Nation. Reid's transformation o f Haida art based on use o f new technologies, the development o f new forms, and the use o f new mediums - gradually earned him the status o f master artist, which in turn allowed h i m to train younger Haida artists such as Robert Davidson. H i s status as master artist was granted because he did pay homage to the Haida traditions and began his work in accordance with Haida Customary L a w - which he also paid homage to throughout his career, while at the same time breaking new ground. These aspects o f Reid's work afforded h i m a type o f "license" from the Haida Nation to transform their artistic traditions i n a respectful manner. This concept o f "license" is a type o f "permission to innovate T K " which characterizes part o f the relationship between the Indigenous artist and the Indigenous Nation to which they belong, and could be termed "Indigenous National Artistic License." The concept o f Indigenous National Artistic License represents an example the evolutional nature of Customary L a w ' s ability to adapt to contemporary contexts. This type o f "license" to transform T K being possessed by Indigenous peoples to use responsibly can be applied to all aspects o f T K use based on the following: 1) the Indigenous  Transformation o f Traditional Knowledge 175  user is a stakeholder with a custodial relationship to the T K ; and 2) the Indigenous user also has a relationship and responsibility to the community the T K derives from and the Customary Laws associated with it. W i t h these relationships intact an ethical use o f T K is able to result. This does not mean that Indigenous peoples are the exclusive users o f T K . A non-Indigenous user is also able to enter into a relationship with an Indigenous community and access T K for a certain use through a process o f F P I C and M A T .  Principles to Guide the Way Forward Based on the discussion o f the issues outlined, new regimes o f protection and regulation for T K could combine aspects o f Customary L a w and European-based L a w and should incorporate the following principles: 1.  A ) Indigenous Nations have a collective ownership over their T K , which could be expressed as a form o f "Collective Copyright." B ) In the development o f a "Collective Copyright" system, a "Collective Royalty" system could also be considered. Another consideration could be that royalty payments for the use o f T K could go into established Indigenous Nations Collection Agencies and/or scholarships and/or an established National Indigenous Arts Fund and/or scholarship.  2.  A n Indigenous Nations' T K has a natural form o f Moral Rights, which could be expressed as "Collective Moral Rights."  3.  N e w regimes o f protection for T K should be based on and/or incorporate Customary Law.  4.  In cases o f conflict between legal systems over T K , Customary L a w should prevail over Eurocentric L a w .  Transformation o f Traditional Knowledge 176  5.  Certain aspects o f T K should not enter the public domain (as deemed under Customary L a w ) and should remain protected as such into perpetuity, which could be expressed as a form o f "Indigenous private domain."  6.  Indigenous artists have "Indigenous National Artistic License" that grants them permission to adapt their particular Indigenous Nations' T K in their work.  7.  Non-Indigenous people and Indigenous peoples from other Indigenous nations do not have Indigenous National Artistic License that grants them permission to adapt their particular Indigenous Nations' T K in their work.  8.  Non-Indigenous people and Indigenous peoples from other Indigenous nations should attain Prior Informed Consent in use o f a particular Indigenous Nations T K i n art (and other tangible commercial objects).  9.  A ) Enforcement o f infringements o f T K regulation should incorporate the concept o f "Cultural H a r m " and damages should reflect the severity o f the harm. B ) Reimbursement payments for profits made from unauthorized use o f T K could also be considered. These payments could be made to the same established funds suggested in 1) B ) .  The Economic Factor Generally, there are Indigenous peoples and N G O s who come to the T K negotiations with Indigenous and Human Rights concerns and/or environmental and cultural concerns, and then there are there are nation states and N G O s that come with political and economic concerns. There are many nation states whose Gross National Product benefits significantly from the exploitation o f T K . Many o f the developed countries know that T K regulation is coming, and would like the economic exploitation o f T K to continue for as long as possible. Indeed, many o f the powerful nation states who hold control within the W T O would rather  Transformation o f Traditional Knowledge 177  the issue o f T K not have been raised and advanced by developing nations i n the T R I P S Agreement. It is developing countries who tend to have a wealth o f T K within their borders and would rather have to make deals with Indigenous peoples than compete with multinational corporations over T K . The W B G would also rather not have had T K issues enter into regulations for their clients who the Bank often provide financing to for projects involving the extracting o f Indigenous resources and knowledge. Without going into great detail and analysis, these are some o f the real factors behind the rhetoric on the integrity o f the I P R system and concerns over conflicts o f legal regimes that are often used as stalling tactics i n the W T O and U N forums. T K has now become a resource to be exploited economically just as Indigenous peoples land and natural resources have been the subject o f exploitation. O n the other hand, Indigenous peoples and developing nations stand to gain economically and could form mutually beneficial and valuable partnerships through T K regulation. T K has the potential to play a significant part in offsetting the global economic imbalance. N e w T K regulation models should also incorporate royalty mechanisms to distribute capital back into Indigenous communities, such as the Indigenous Funds operating in the Peruvian L a w and those proposed i n the above Principles. It would also be possible to set up royalty sharing schemes between Indigenous peoples, innovators and corporations where T K is transformed for new uses.  T h e Case for T K Regulation i n C a n a d a It is clear that there are pressing issues in the regulation and protection o f T K . It is also clear that there are problems to which the I P R system other Eurocentric concepts do not offer a solution. Such discrepancies between T K and the I P R systems have led certain academics and Indigenous peoples to reject the current system i n its entirety. Some have  Transformation o f Traditional Knowledge 178  argued that the protection o f T K requires the establishment o f an entirely new system. In the developing literature and discourse, this proposed new system is usually referred to as Sui Generis. A n "intellectual property-like" system could be adopted to suit T K needs. The T K / I P R interface forces us to re-evaluate Intellectual Property fundaments. The central question in this debate is, can Intellectual Property be a truly universal system recognizing various forms o f traditional creations and innovations and grant some protection to collective rights holders? A perceived need to legislate a Sui Generis system to match identified needs o f T K holders clearly does exist. Others would argue that resorting to a Sui Generis system should be a solution o f last resort, because it could mean that instead o f finding out why the system does not work, a "tailored" system is legislatively put in place without necessarily thinking about its impact on the existing system. In order to avoid stretching the current Intellectual Property canvass beyond what is reasonable, a Sui Generis regime could be established and extended through a new international instrument (Gervais-2002) that would likely be developed first in the W I P O I G C and perhaps later in the C B D . This could happen once countries most advanced in dealing with T K issues have adopted and tested certain forms o f protection o f T K and shown that these new forms o f protection actually work in meeting the needs and expectations o f T K holders. While international efforts continue to discuss and develop regulations for T K protection, complementary efforts must be made on domestic fronts at the same time. Countries with wide-spread abuse o f T K in the arts and other areas, like Canada and Australia, must move quickly to bring about domestic regimes o f protection that w i l l be in line with developing international regimes. The Carpet Case and the Bulan Bulan Case in Australia have begun the process by establishing Indigenous copyright (and affording it the  Transformation o f Traditional Knowledge 179  same protective mechanism as European-based Intellectual Property); although the Court stopped short o f recognizing Collective Copyright. In Bulan Bulan this was done on what could be seen as an erroneous attempt to apply the concept o f Indigenous collective ownership to the concept o f "joint authorship." More such test cases on T K are now required in Australia since a new Moral Rights regime has been established after Bulan Bulan. In Canada the contradictory judgments o f the Snow and Theberge cases leave all creative works relation to Moral Rights in question, let alone T K , and further test cases are required on M o r a l Rights to clarify the contradiction. Meanwhile, the S C C has yet to consider the existence o f a collective Aboriginal Right to ownership and control o f Aboriginal cultural property. Again, test cases on T K are required in Canada to begin the 5  process i n C o m m o n L a w that is underway in Australia. Meanwhile Canada and Australia and many other countries need to begin the process o f working with Indigenous groups on the development o f new regimes o f protection or face problems o f conflicting national and international regimes when international standards are set. The time frame to do so seems to be getting shorter as the W I P O I G C appears to be heading towards an incremental approach starting with short-term soft law and long-term entrenched law. In the I G C work plan it appears that this w i l l begin soon with a political declaration on T K rights leading to instruments such as a binding or non-binding treaty (or treaties). It is certainly the hope o f many Indigenous peoples, and their lobbyists and supporters, that the I G C ' s current program of work on Customary L a w w i l l lead to a binding treaty (or treaties) that also recognize and incorporate Customary Law. It has, i n fact, emerged in Indigenous and other perspectives on  Bell, Catherine & Paterson, Robert (2003). Aboriginal Rights and Repatriation of Cultural Property. In Box of Treasures or Empty Box: 20 Years of Section 35. (pp. 121). Penticton, British Columbia: Theytus Books.  5  Transformation o f Traditional Knowledge 180  the discourse that any consideration o f Sui Generis mechanisms must incorporate Customary Law. Indigenous Customary L a w is intended to protect Indigenous knowledge; therefore, any o f the problems with T K in relation to Eurocentric law, should be seen as an issue o f conflict o f parallel legal regimes. Customary L a w regarding T K should prevail over Eurocentric patent, trademark or copyright law: but, in the present situation, it clearly does not. It is possible, however, to imagine that a fusion o f concepts from Customary L a w and I P R L a w could be developed to regulate the use o f T K in contemporary contexts. In Canada, Indigenous jurisprudence, knowledge and heritage is uniquely constitutionally protected as an Aboriginal and/or treaty right i n Section 35 o f the Constitution Act, 1982 and Section 25 in the Charter of Rights. The Charter also recognizes the constitutional and legal rights to Aboriginal heritage, (s. 27) languages (s. 22) and education (s. 29).  6  The governments o f  Canada (federal, provincial or territorial) have not clearly claimed jurisdiction or ownership over Indigenous knowledge i n any public statement, policy or legislation. Therefore, there appears to be an implied recognition that Indigenous peoples have control and management o f their Indigenous knowledge, but a concise legal affirmation that Indigenous knowledge is an Aboriginal right under section 35(1) o f the Constitution Act, 1982 is required. Canada has approached Indigenous knowledge from both a self-government and conventional means perspective, willing to negotiate Indigenous knowledge as an implicit subject matter o f selfgovernment negotiations (Alexander-2005). Canada also advocates protection and management o f Indigenous knowledge by conventional contracts, other co-management agreements or existing legislation. The situation i n Canada is that legal interpretation o f T K rights is required by the introduction o f Bell, Catherine & Paterson, Robert (2003). Aboriginal Rights and Repatriation of Cultural Property. In Box of Treasures or Empty Box: 20 Years of Section 35. (pp. 121). Penticton, British Columbia: Theytus Books.  6  Transformation o f Traditional Knowledge 181  test cases. This could work i n conjunction with or separate from any legislative initiatives may be taken by Canada to protect and/or regulate T K . It could also work i n conjunction with or separate from any further legal interpretation o f Moral Rights in Canada. Canada has been apathetic with regard to taking any significant T K initiatives and, although there may be some recent potential for movement, it appears that test cases would be necessary to accelerate any progress - as has been done i n Australia. The Indigenous humanities and visual arts are integral to the renewal, revitalization o f Indigenous knowledge (Henderson-2002) yet they are exploited unabated by appropriators who often can use the I P R system to protect themselves. Intellectual Property was conceived and developed independently o f the T K system and later imposed upon the T K system through the colonization process. The I P R system never took into account Indigenous cultural protocols, or the intrinsic value o f T K , yet it's economic institutions now exploit T K while Indigenous peoples remain the most economically deprived population i n the world. National and international Sui Generis regimes o f protection for T K based on Customary L a w and current global economic realities are required to resolve the situation and must be created with the participation o f Indigenous peoples. In the meantime ongoing discussions at the Indigenous community, national and international level w i l l continue to lead the way forward to solutions that satisfy Indigenous peoples and others interested i n T K . The National Gatherings on Indigenous Knowledge may be part o f a beginning to address these issues in Canada. Previous national initiatives in countries such as Australia, N e w Zealand, Nigeria, India, Brazil, China, Costa Rica, Peru, Philippines, Portugal, Thailand, South Africa and the U S that have been addressing T K issues for several years may one day be able to add the Canadian experience to the list o f advanced national initiatives that can inform the international initiatives taking place in  Transformation o f Traditional Knowledge 182  W I P O and C B D , and other forums o f the U N , and lead to the development o f viable solutions. Hopefully these solutions w i l l be designed to strike a balance between protecting T K and allowing it to be shared for the benefit o f all. The C B D states that Traditional Knowledge provides "valuable information to the global community and a useful model for biodiversity policies ... as on-site communities with extensive knowledge o f local environments, indigenous and local communities are most directly involved with conservation and sustainable use" (The Handbook o f the Convention on Biological Diversity-2005). A s a signatory to the Convention, Canada is obligated to do its part in protecting and preserving Indigenous knowledge. It is time for Canada to recognize, value and protect Indigenous knowledge in all its richness and complexity. There are two key points to be made in the Canadian legal context. First, Indigenous knowledge is an incidental right o f each constitutionally protected Aboriginal and treaty right, and second, Aboriginal rights, and corresponding Aboriginal traditional knowledge-based rights, are collective not individual i n nature. Canadian Aboriginal groups need to use their constitutional and legal leverage to take a rights-based approach to their ownership, management, control and continuation o f their knowledge systems. The Supreme Court o f Canada has affirmed this as follows: "to ensure the continuity of Aboriginal practices, customs and traditions, a substantive Aboriginal right w i l l include an incidental right to teach such a practice, custom and tradition to a younger generation" (Cote vs. The Queen-199%). The S C C has also affirmed the Aboriginal legal perspective that Aboriginal rights, by their very nature, are collective rights held by members o f the particular Aboriginal nation as follows: "Aboriginal and treaty rights cannot be defined in a manner which would accord with common law concepts... Rather, they are the right o f Aboriginal people i n common with other Aboriginal people to participate in certain practices  Transformation o f Traditional Knowledge 183  traditionally engaged in by particular Aboriginal nations in particular territories'XCote vs.  The Queen-1998). Indigenous peoples use the Oral Tradition to chronicle important information, which is stored and shared through a literacy that treasures memory and the spoken word. The oral transmission allows for a constant re-creation of Indigenous systems o f laws. The reinterpretation o f tradition to meet contemporary needs is a strength o f this methodology. Customary L a w , like other sources o f law, is dynamic by its very nature (Alexander-2003). Indigenous peoples had rights o f self-government and self-regulation at the time o f sovereignty. Those rights rest on the customs, traditions and practices o f those peoples and formed an integral part o f their distinctive cultures. The S C C has recognized that the assertion o f C r o w n sovereignty does not prohibit a continuing co-existence with Aboriginal Customary L a w . Courts have also held that Customary L a w is neither abrogated nor derogated by provincial, territorial or federal law unless there is "clear and plain" intention o f the sovereign power by act o f Parliament or legislature. Indigenous peoples in Canada must begin to take actions to increase public awareness on T K issues and initiate court actions to push the T K agenda. The fact that misappropriations o f T K continue i n Canada shows that the status quo is far out o f line with the legal reality. Canada is also far behind the many countries mentioned previously who have taken steps to regulate and protect T K . Thus far, Canada has not expressed any policy on T K and has only made the following disjointed responses to the problem: a) the introduction o f the Igloo Mark in the 1960s that has now fallen out o f usage; b) certain government agencies and departments funding certain research projects related to T K ; c) the National Gatherings on Indigenous Knowledge conducted i n 2004-2005 (the Report o f which  Transformation o f Traditional Knowledge 184  is thus far unpublished and awaiting approval at the Prime Minister's Office); d) the establishment o f an inter-departmental committee including Department o f Canadian Heritage, Industry Canada, Indian and Northern Affairs Canada Department o f Foreign Affairs and International Trade, Environment Canada and Department o f Justice. These ineffective or otherwise inactive measures are not sufficient to address the complex, salient issues and problems that that have been addressed in this dissertation. To make matters worse, Canada has consistently been among a few countries who block and oppose the advancement o f T K protection, Indigenous participation, and Indigenous rights i n general in the C B D , the W I P O I G C , and other international forums. It was the Canadian delegation who first spoke against the proposal for increased Indigenous participation in the third A B S Working Group (2005) and continued to oppose it in the fourth A B S Working Group (2006). Canada has also been one o f the few nations who openly oppose consideration of Customary L a w and Sui Generis regimes and do not support the proactive T K and T C E documents in the W I P O I G C . More recently, Canada was also a leading delegation initially opposed to the passage o f the U N Declaration o f the Rights o f Indigenous Peoples first meeting o f the new U N Human Rights Council in June 2006. The recent passage o f U N Declaration o f the Rights o f Indigenous Peoples by the new United Nations Human Rights Council represents the first step in a landmark for the recognition o f Indigenous peoples rights on an international level that should also be reflected domestically within the borders o f U N member states. If the Declaration is approved by the U N General Assembly it w i l l become an all encompassing Indigenous rights "soft law" and set high international standards for U N member states to abide by. Even though Canada was one o f only two member states to vote against the Declaration in the U N Human Rights Council, it w i l l still be required to uphold the standards  Transformation o f Traditional Knowledge 185  set out i n the Declaration as a U N member state. A s T K has emerged as a key Indigenous issue over the past decade, Indigenous peoples now have a complete set o f standards to advance Indigenous rights in various forums in addition to their human rights. The beginning of the process to adopt the Declaration comes at a time when T K issues are forefront internationally in many nation states that characterize themselves as progressive and humanitarian i n nature. Canada likes to include itself among such nations and must, therefore, move within a short timeframe to bring itself in-line with the emerging international and other national standards that have been considered and discussed herein. It has now been almost one hundred years since Deskaheh went to Ottawa i n 1914, and then to the League o f Nations in 1922, to advocate for Indigenous rights in Canada. In the years since Deskaheh's interventions, slow but steady progress has been made internationally on Indigenous peoples rights to their lands, resources, heritage and knowledge. It would seem, however, that the first U N member state to be confronted in an international forum over its treatment o f Indigenous peoples continues to resist the inevitable international standards. D E F I N I N G M O M E N T A T T H E E N D O F W R I T I N G : The week o f June 2530, 2006, was spent working hard at completing the final draft o f my dissertation; knowing that, as I worked in Vancouver, the first meeting o f the new U N Human Rights Council was meeting i n Geneva considering the passing o f the U N Draft Declaration on the Rights o f Indigenous Peoples. I had asked my friend Sonia, who works at the U N Permanent Forum on Indigenous Peoples, to keep me informed on the Declaration's progress because it was an important aspect o f my dissertation. Early i n the week she informed me, "It seems that almost all member states are supportive, but Canada is trying to block it." O n the evening o f June 2 9 , after a long day at the computer, I checked my voice mail to hear Soma's message saying, "just calling to let you know the Draft Dec passed." The next day I found out that Canada was one o f the two countries to oppose it and made some changes to my dissertation to reflect the recent events. Canada's opposition was o f no surprise to me after witnessing the Canadian delegations positions and statements on Indigenous and T K rights at several U N meetings over the past five years. th  Transformation o f Traditional Knowledge 186  REFERENCES Adams, Howard (1995). In A Tortured People: The Politics of Colonization. British Columbia: Theytus Books L t d .  Penticton,  Alexander, Merle, (2003). Customary Laws: Appling Sharing within Communities to International Instruments. Unpublished. Archibald, Jo-ann, (1997). 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